Family law in Australia [9th edition.] 9780409341379, 0409341371

930 104 10MB

English Pages [1687] Year 2016

Table of contents :
Full Title
Copyright
Preface
Acknowledgments
Table of Cases
Table of Statutes
Table of Contens
Chapter 1 Law, Society and the Family
Introduction
A short history of English marriage and divorce law
Marriage
Marriage breakdown and its early remedies
Annulment
Parliamentary divorce
Divorce for the common man (and woman?)
The coming of divorce
From fault to irretrievable breakdown
Adultery
Cruelty, desertion and incurable insanity
Irretrievable breakdown
Developing an Australian family law
Introduction
Matrimonial Causes Act 1959 (Cth)
Family Law Act 1975 (Cth)
The creation of the Family Court of Australia
Families in Australia: The modern social context
The modern family
Families based on marriage
Families based on cohabitation — ‘de facto’ marriage
Same-sex couples
Children as the basis of family law regulation
Family violence and family law
The psychological impacts of relationship breakdown
Infants and toddlers
Preschoolers
School age
Helping younger children transition
Early adolescence
Reading the signs
Chapter 2 Dispute Resolution in Family Law
Introduction
Out-of-court FDR
Family Relationship Centres
What is FDR and who are FDR practitioners?
Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)
Dispute resolution processes
Negotiation
Mediation
Child-inclusive mediation
Further FDR processes outside the court system
Collaborative law
Legal aid conference/dispute management
Arbitration
Pre-action procedures
Parenting disputes and s 60I certificates
Property settlement and maintenance
When is FDR unsuitable?
FDR processes within the court system
Family consultants
Conciliation and case assessment conferences
Obligations on advisers
Family counselling in respect of children
Confidentiality and admissibility of communications in family counselling and FDR
Chapter 3 Violence and Abuse
Introduction
Government inquiries following the 2006 reforms
New definitions of ‘family violence’ and ‘child abuse’ in the FLA
Recent developments
Family violence
Child abuse
International instruments
Injunctions
Introduction
The injunction as protection from violence and harassment
Injunctions excluding a party from the home
Injunctions for the protection of a child (and others)
Enforcement
Protection orders under state and territory legislation
Relationship between Commonwealth and state or territory laws
What constitutes child abuse?
Incidence, causes and effects of child abuse
Protecting children from abuse under state and territory legislation
Mandatory reporting under state and territory laws
Mandatory reporting under the FLA
State intervention for the protection of a child
Child protection: the relationship between the Commonwealth and state and territory laws
Other strategies
Chapter 4 Constitutional Powers and the Family Courts
Introduction
Constitutional powers
The marriage power
The matrimonial causes power
The FLA
The first challenge to the FLA: Russell v Russell
The effects of Russell v Russell
The limits of federal jurisdiction
Introduction
Federal law and the adoption of children
Third parties and the ‘child of the marriage’
Wardship and the welfare jurisdiction of the Family Court
Testing the limits of the welfare jurisdiction
Other proceedings between the parties
Overcoming the limitations: first steps
Involvement of the state courts
State family courts
The Family Court of Western Australia
Overcoming the limitations: bold steps
Associated and accrued jurisdiction
Referral of power
Cross-vesting of jurisdiction
Domicile and the basis of jurisdiction
The Family Courts
The Family Court of Australia
The Federal Circuit Court of Australia
The Family Court of Western Australia
Appeals
The nature of appeals
Full Court of the Family Court of Australia
Appeals from the Federal Circuit Court of Australia (and the Magistrates Court of Western Australia)
Appeals from the Family Court of Australia and the Family Court of Western Australia (or a state and territory Supreme Court)
Appeals to the High Court
Chapter 5 Marriage and De Facto Relationships
Introduction
Marriage
Essential characteristics
Monogamy
Polygamy
Indigenous Australians — Aboriginal customary marriages
A man and a woman
A voluntary union
For life
Engagements and breach of promise
Codifying marriage
Introduction
Marriage Act
Marriage Amendment Act 1985 (Cth) and the marriage of foreign nationals in Australia
Capacity to marry
Freedom to marry
Prohibited relationships
Marriageable age
Consent to the marriage of minors
Formalities
Marriages in Australia by authorised celebrants
Consular marriages in Australia
Australian marriages overseas
Recognition of foreign marriages
Introduction
The ‘new’ statutory recognition rule: local law
Recognition at common law
No recognition of ‘foreign’ same-sex marriages
Presumed validity of marriage
Second marriage ceremonies
Consequences of non-compliance with the Marriage Act
Legitimation
De facto relationships
Introduction
De facto relationships and the FLA
The FLA definition
The nature of the s 4AA inquiry
The key concepts — ‘a couple living together on a genuine domestic basis’
Multiple relationships
The circumstances of the relationship
Existence of the relationship over time
De facto relationship declarations
Relationship registration schemes
Close and caring personal relationships
Civil partnership laws
Chapter 6 Nullity, Divorce and Termination of De Facto Relationships
Introduction
Jurisdiction — divorce and nullity
Institution of proceedings
Nullity
Introduction
Subsisting prior marriage
Prohibited relationships
Invalidity under s 48 of the Marriage Act 1961 (Cth)
Absence of real consent
Duress or fraud
Mistake
Mistake of identity
Mistake as to the nature of the ceremony
Mental incapacity
Party below marriageable age
Divorce
Introduction
Irretrievable breakdown of marriage
Separation
Separation under the same roof
Reasonable likelihood of cohabitation being resumed
Duration of separation
The two-year marriage — s 44(1B) and (1C) of the FLA
Divorce orders
When divorce order takes effect
Arrangements for children
Rescission of divorce orders
Foreign divorces, annulments and legal separations
Void and invalid marriages
Divorce and nullity
Declarations of validity
Ancillary proceedings
Termination of de facto relationships
Introduction
Meaning of breakdown
What constitutes breakdown of a de facto relationship
Registered relationships and civil partnerships
Chapter 7 Parentage
Introduction
Status of children
Historical background
Status of children legislation
Establishing parenthood
Presumptions of parentage under the FLA
Parentage evidence
Assisted conception
Legislative solutions
Known donors under the FLA
Assisted conception and child support
Regulation of artificial/assisted conception and related research procedures
Status of frozen embryos
Posthumous sperm
Legislative developments
Access to assisted conception procedures
Surrogacy
The status of surrogacy arrangements
Legislative developments
Surrogacy arrangements and the FLA
Conflicting decisions in the Family Court
Parental responsibility v orders for legal parentage
Conclusion
Chapter 8 Child-Related Disputes: The Legislative Framework
Introduction
The United Nations Convention on the Rights of the Child 1989
Proceedings in respect of children under the FLA
Background to the current legislative regime
Scope of operation of Pt VII of the FLA
Key features of Pt VII
Parental responsibility
Content of parental responsibility
Who has parental responsibility?
Joint or several responsibility?
Scope of parental responsibility
Reallocation of parental responsibility
Parenting agreements
Institution of proceedings and procedure
Who may institute proceedings?
Required jurisdictional connection
Parenting orders
Orders dealing with where a child lives
Orders dealing with children spending time, or communicating, with another person
Proceedings in respect of parenting orders
Exercise of the court’s jurisdiction: the best interests of the child as the paramount consideration
The mandatory process for determining best interests
Scope of operation of the best interests of the child principle under the FLA
The less adversarial trial
Representation of children’s interests: the independent children’s lawyer
Circumstances in which the court may appoint an ICL
Role of an ICL
Discharging an ICL
Expert evidence
Family reports by family consultants
Orders that can be made
General
Orders least likely to lead to further proceedings
Interim orders
Variation of orders in respect of children
Interrelationship between parenting orders and family violence orders
The Family Court’s welfare jurisdiction
Enforcement of orders in relation to children
Background
The current legislative scheme
Specific legal mechanisms dealing with non-compliance
Legislative restrictions regarding the removal of children from Australia
Location orders
Recovery orders
International child abduction
Chapter 9 Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility
Introduction
The statutory framework for applying the best interests principle
Applying the presumption of equal shared parental responsibility
The operation of s 65DAA and shared parenting
The historical preference for mothers as custodians
Attachment theory
Research on the benefits to children of shared parenting
The use of social science research as an aid to the exercise of discretion
Section 65DAA and shared parenting
Relevant considerations in the exercise of the court’s discretion
Introduction
Findings of credit
Primary versus additional considerations
The two primary considerations
The benefit to a child of a meaningful relationship with both parents
Protection from harm and family violence
Additional considerations
Views of the child
Disturbing the status quo
Separation of siblings
Parents, third parties and the role of biology in decision-making
The general conduct of the parties
Matrimonial conduct of the parties
Kidnapping
Unconventional lifestyle
Homosexuality
Religion
Children of Aboriginal or Torres Strait Islander descent
‘Spend time with’ orders
Orders not permitting children to spend time with parents
Orders for children to spend time with non-parents
The impact of a child not wanting to spend time with a parent
The intractable nature of ‘spend time with’ orders
Allegations of child sexual abuse in contested child proceedings
Relocation cases
Change of name
Chapter 10 Financial Support of Married and De Facto Partners
Introduction
Support of married partners
Introduction
The history of spousal maintenance
Policy issues in the current law
Jurisdiction and types of maintenance orders
Entitlement to spousal maintenance
The threshold: s 72
The court’s power under s 74 and the s 75(2) factors
The parties’ needs and means
Financial relationships with third parties
Section 75(2)(o) and considerations of conduct
Private and public purses: the relationship between spousal maintenance and social security
Spousal maintenance orders
Form
Modification
Duration
Enforcement
The future of spousal maintenance
Support of de facto partners
Introduction
Statutory maintenance entitlements prior to the commencement of Pt VIIIAB in 2009
Statutory maintenance entitlements after the commencement of Pt VIIIAB
Threshold issues and time limits
Geographical requirements
The court’s power under s 90SE and the s 90SF(3) factors
Modification and cessation of de facto relationship maintenance order
Enforcement
Child-bearing expenses
Chapter 11 Financial Support of Children
Introduction
Child maintenance principles under the FLA
Maintenance for adult children
Applications on the basis of an adult child’s disability
Applications to enable an adult child to complete his or her education
Liability of step-parents for child maintenance
The CSS
Introduction
Background to the introduction of the CSS
Reform of the CSS
Registration and collection of child support
Introduction
Objects
Collection, payment and enforcement of child support
Associated changes to social security
Administrative assessment of child support
Introduction
Children to whom administrative assessment applies
Persons who may apply for administrative assessment
Persons who may be liable for administrative assessment
Recovering money wrongly paid under an administrative assessment
Processing applications for administrative assessment
Child support period
Statutory formula for administrative assessment of child support
Departure from administrative assessment
Introduction
Significantly reduced capacity of either parent to provide financial support
High costs of the child
Child or parents’ financial situation and payments in lieu of child support
Changes to an assessment under Pt 6A
Varying a departure from assessment
Orders for child support other than in periodic form
Private arrangements for child support
Cessation of child support
Chapter 12 Property Proceedings: Preliminary Issues
Introduction
Achieving economic justice?
The economic consequences of relationship breakdown
Extraneous factors resulting in financial disadvantage for women
Historical background
The Commonwealth and married couples
Parties to a de facto relationship
Policy and reform issues in relation to financial matters
Jurisdiction
Married couples
Arising out of the marital relationship
Proceedings following the death of a party
Principal relief, including overseas divorce and nullity
Parties to former de facto relationships
De facto couples: threshold conditions
Conclusion
Chapter 13 Property Proceedings: The Legislative Framework
Introduction
The time limits for bringing an application for property settlement
Married couples
Parties to former de facto relationships
The finality principle
Declaration of property interests
An overview of the relevant legislative provisions for dividing property
Dividing property under the FLA
The four-step approach post-Stanford
The first ‘fundamental principle’: identifying legal and equitable interests in property
Defining property
Financial resources
Companies and discretionary family trusts
Notional property and add backs?
Notional property post-Stanford
Valuing property
Liabilities
Full and frank disclosure
The second and third ‘fundamental principles’ and the just and equitable requirement
A structured approach: four or five steps?
The nature of the inquiry
The content of the inquiry
A summary of the property pathway post-Stanford
Conclusion
Chapter 14 Property Proceedings: The Exercise of the Discretion
Introduction
The exercise of the discretion
The alteration of property interests
Identification of contributions
Financial contributions
Non-financial contributions
Contributions to the welfare of the family
Assessing contributions
Global or asset-by-asset approach?
The rise of the partnership approach and the fall of ‘special contributions’
Equality as a starting point rejected
Greater value (in theory) placed on ‘women’s work’
The rise and fall of ‘special’ contributions
The rise and rise of special contributions
The fall and fall of special contributions
Financial misconduct
Family violence
The Kennon decision
After Kennon
Contributions
Initial contributions
Post-separation contributions
Gifts
Inheritances
Windfalls
Compensation awards
Additional factors
Section 79(4)(d)/90SM(4)(d): effect on earning capacity
Section 79(4)(e)/90SM(4)(e): other factors
Increased emphasis on ‘other factors’
Section 79(4)(f)/90SM4(f): order affecting a party or child
Section 79(4)(g)/90SM(4)(g): child support
The contemporary approach to additional factors
A ‘just and equitable’ order
Forms of order for property adjustment
Relationship between spousal maintenance and property adjustment
Conclusion
Chapter 15 Property Proceedings: Specific Issues
Introduction
Superannuation
Superannuation before the 2002 amendments
Background information on superannuation
Superannuation after the 2002 amendments
Splitting orders and flagging orders
Is superannuation property?
Superannuation agreements
Injunctions
Introduction
Injunctions restraining the disposition of property
Orders and injunctions against third parties
Situation after the commencement of Pt VIIIAA
Practical implications of Pt VIIIAA
Section 85A
Setting aside transactions
Position of the bona fide purchaser
Conclusion
Financial agreements and consent orders
Orders made with the consent of the parties
Maintenance agreements under the FLA (1976–2000)
Financial agreements under the FLA (2000–present)
Requirements of financial agreements that are enforceable between the parties
What may be included in a financial agreement
Spousal maintenance
Other matters relating to financial agreements
Setting aside a financial agreement
A binding financial agreement that ousts the jurisdiction of the courts
Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth)
Bankruptcy and the FLA
Introduction: Becoming bankrupt in the context of family law proceedings
Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth)
Setting aside property orders
Introduction
Miscarriage of justice
Impracticability
Default
Exceptional circumstances relating to the care, welfare and development of a child
Consent to vary
Varying orders made with the consent of the parties
Conclusion
Index

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FAMILY LAW IN AUSTRALIA 9th Edition

Lisa Young B Juris, LLB (W Aust), LLM (Cantab) Admitted as a Barrister and Solicitor of the Supreme Court of Western Australia and the High Court of Australia Associate Professor, School of Law, Murdoch University, Perth

Adiva Sifris B Proc (Wits), LLM, PhD (Monash) Admitted as a Barrister and Solicitor of the Supreme Court of Victoria and the High Court of Australia Senior Lecturer, Faculty of Law, Monash University, Melbourne

Robyn Carroll B Juris, LLB (W Aust), BCL (Oxon) Admitted as a Barrister and Solicitor of the Supreme Court of Western Australia Professor, Law School, The University of Western Australia

Geoffrey Monahan BA (Macq), LLB (Syd), LLM (NSW) Judge, Federal Circuit Court of Australia

LexisNexis Butterworths Australia 2016

AUSTRALIA

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

Young, Lisa. Family Law in Australia. 9th edition. 9780409341362 (pbk). 9780409341379 (ebk). Notes: Includes index. Subjects: Family law — Australia. Domestic relations — Australia. Marriage law — Australia. Divorce — Law and legislation — Australia Other Creators/Contributors: Sifris, Adiva. Carroll, Robyn. Monahan, Geoffrey. Dewey Number: 346.94015 © 2016 Reed International Books Australia Pty Limited trading as LexisNexis. 1st edition, 1972; 2nd edition, 1979; 3rd edition, 1983; 4th edition, 1989; 5th edition, 1997; 6th edition 2006; 7th edition 2009; 8th edition 2013. This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in ITC Stone Sans and ITC Stone Serif. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

PREFACE ___________________________

This book was first published in 1972 and the original authors were Henry Alan Finlay and Alastair Bissett-Johnson. In the tradition of a legal treatise, the work was written to enable law scholars, students and practitioners to know what the law was. The book was also designed to promote a greater understanding of how the law worked, how it had come to be what it was, and how it could be improved. At the time of the first edition, the Matrimonial Causes Act 1959 (Cth) was still in operation. This statute was soon to be replaced by the Family Law Act 1975 (Cth), which heralded a completely new approach to family law. This was reflected in the second edition, published in 1979. The third (1983), fourth (1989) and fifth (1997) editions continued the primary aims of the book; that is, to strike a balance between theory and practice, and to place the explanation of family law in a historical and social context; and to stimulate discussion on future directions of reform. In addition to the late Henry Alan Finlay, the author team included Alastair BissettJohnson, Rebecca Bailey-Harris and Margaret Otlowski. The sixth (2006) and seventh (2009) editions marked a new direction in the evolution of the book. After nearly a decade, it had both a new author team (Geoffrey Monahan and Lisa Young) and a new format. Adiva Sifris and Robyn Carroll joined the author team for the eighth edition (2013) and contributed to a substantial reworking of the materials, including a new chapter on

dispute resolution and a reworking of those sections dealing with family violence. In this latest edition, further substantial revisions have been made, most notably to the chapters dealing with property disputes, which have been reworked to accommodate the developing jurisprudence in this area. Lisa Young was responsible for the introductory Chapter 1, Chapter 3 on family violence, Chapters 8 and 9 dealing with disputes concerning children and Chapter 11 dealing with the financial support of children, and contributed paragraphs 14.2–14.6 dealing with the role of ‘legitimate guidelines’. Carolyn Johnson contributed the materials on the psychological impacts of family breakdown in Chapter 1 and attachment theory in Chapter 9. Adiva Sifris was responsible for Chapter 7 on parentage, and the new chapters on property disputes and financial matters, Chapters 12–15. Robyn Carroll was responsible for Chapter 2 on dispute resolution, Chapter 5 on marriage and de facto relationships, Chapter 6 on divorce, and Chapter 10 on spousal maintenance. Geoffrey Monahan was responsible for Chapter 4 and contributed paragraphs 15.61–15.67, dealing with bankruptcy and the Family Law Act. The ninth edition states the law as at 4 December 2015. Finally, we thank our families, our research assistants and our employers for their support during the research and writing of this edition. Enjoy your exploration of Australian family law. Lisa Young, Adiva Sifris, Robyn Carroll and Geoffrey Monahan April 2016

ACKNOWLEDGMENTS ___________________________

The authors and publishers are grateful to the holders of copyright in material from which extracts appear in this work, especially to the following: Australian Government Publishing Service Australian Institute of Family Studies Australian Society for the Study of Labour History © Commonwealth of Australia While every care has been taken to establish and acknowledge copyright, the publishers tender their apologies for any accidental infringement. They would be pleased to come to a suitable arrangement with the rightful owners in each case. The legislation reproduced herein does not purport to be the official or authorised version.

TABLE OF CASES ___________________________

References are to paragraph numbers

A A (a child), Re (1993) 16 Fam LR 715; FLC ¶92-402 …. 8.124 A v A (1998) 22 Fam LR 756; FLC ¶92-800 …. 9.36, 9.112 — v GS (2004) 32 Fam LR 583; FLC ¶93-199 …. 8.151, 8.159 A & A (1981) 7 Fam LR 439; FLC ¶90-070 …. 8.31 A & B, Marriage of (1989) 13 Fam LR 798; FLC ¶92-126 …. 7.28 A & B, Re (2000) 26 Fam LR 317 …. 7.39 A & J, Marriage of (1995) 19 Fam LR 260; FLC ¶92-619 …. 9.69 AA v Registrar of Births, Deaths and Marriages and BB [2011] NSWDC 100 …. 7.22 AB v Attorney-General (Vic) [2005] VSC 180 …. 7.30 — v Attorney-General (SC (Vic), Gillard J, No 6553 of 1998, 21 July 1998, unreported) …. 7.30 — v Western Australia (2011) 244 CLR 390; 281 ALR 694; 85 ALJR 1233; 46 Fam LR 1 …. 5.13 — v ZB (2002) 30 Fam LR 591; (2003) FLC ¶93-140 …. 14.13 Abati & Cole [2015] FamCA 185 …. 12.30 Abbott, Marriage of (1995) 123 FLR 424; 18 Fam LR 550; FLC ¶92-582 …. 6.58 Abdo & Abdo (1989) 12 Fam LR 861; FLC ¶92-013 …. 14.59 Abdullah, Marriage of (1981) 6 Fam LR 654; FLC ¶91-003 …. 15.29, 15.32, 15.33 Abud & Abud [2010] FamCA 1132 …. 8.132 AC & VC (2013) 49 Fam LR 276; FLC ¶93-540 …. 15.25 Ackersley v Rialto [2009] FamCA 817 …. 8.134 Actors and Announcers Equity Association of Australia and Others v Fontana Films Pty Ltd (1982) 150 CLR 169 …. 15.24 Adair v Milford [2015] FamCAFC 29 …. 10.23, 13.31 Adame & Adame [2014] FCCA 42 …. 15.49

Adams v Adams (1968) 11 FLR 197 …. 10.14 Adamson & Adamson [2014] FamCAFC 232 …. 9.25, 9.121, 9.122, 9.123 Agar-Ellis, Re; Agar-Ellis v Lascelles (1883) 24 Ch D 317 …. 8.29 Agee & Agee (2000) 27 Fam LR 140; FLC ¶93-055 …. 8.158 Aitken v Deakin [2010] FMCAfam 35 …. 5.113, 6.70, 6.121 AK v NC (2003) 32 Fam LR 16; FLC ¶93-178 …. 6.51 Akston & Boyle (2010) FLC ¶93-436 …. 2.43, 3.45 Al Soukmani & El Soukmani (1989) 96 FLR 388; 13 Fam LR 441; FLC ¶92-107 …. 6.36 Aldred & Aldred (1988) FLC ¶91-933 …. 14.20 Aldridge v Keaton (2009) 42 Fam LR 369; FLC ¶93-421; [2009] FamCAFC 229 …. 7.11, 7.19, 7.56, 8.42, 8.62, 9.26, 9.61 Aleksovski and Aleksovski (1996) 20 Fam LR 894; (1996) FLC ¶92-705 …. 14.55 Alex, Re (2009) 42 Fam LR 645 …. 8.124, 8.125 Alex (hormonal treatment for gender dysphoria), Re (2004) 31 Fam LR 503; FLC ¶93-175 …. 8.124 Allamar v Benny [2012] FamCAFC 42 …. 6.12 Allan & Allan (1987) FLC ¶91-824 …. 12.36 Allardyce v Mitchell (1869) 6 WW & A’B (M) 45 …. 6.41 Allen v Allen [1948] 2 All ER 413 …. 9.10 — v Allen; Hargraves (1984) 9 Fam LR 440; FLC ¶91-531 …. 9.43 Althaus, Mariage of (1979) 8 Fam LR 169; FLC ¶91-233 …. 13.4 AM, Re (2006) 35 Fam LR 319; FLC ¶93-262 …. 11.19, 11.29 Amero v Croft [2010] FamCAFC 118 …. 13.15 AMS v AIF (1999) 24 Fam LR 756; FLC ¶92-852 …. 9.119 Anast & Anastopoulos (1981) 7 Fam LR 728 …. 10.36, 10.37, 14.67 Anderson & McIntosh (2013) 50 Fam LR 609; FLC ¶93-568 …. 13.5 Antmann & Antmann (1980) 6 Fam LR 560; FLC ¶90-908 …. 14.34 AP v ENP (P & P) (2003) FLC ¶93-161 …. 14.41 — v RD [2011] NSWSC 1389 …. 7.44 Apt v Apt [1947] 2 All ER 677 …. 5.64 Archbold, Marriage of (1984) 9 Fam LR 798; FLC ¶91-532 …. 8.97 Archer & Archer (SSAT Appeal) [2013] FCCA 226 …. 11.29 Armitage v Attorney-General [1906] P 135 …. 12.38 Aroney & Aroney (1979) 5 Fam LR 535; FLC ¶90-709 …. 14.18 Arpas & Arpas (1989) FLC ¶92-042 …. 15.70 Arthur & Comben (1977) 3 Fam LR 11,199; FLC ¶90-245 …. 9.129 Arunchalam & Arunchalam [2012] FamCA 26 …. 13.11 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 6 Fam LR 591; FLC ¶91-000 …. 13.23, 15.17, 15.18, 15.19, 15.24, 15.26

Ashton, Marriage of (1982) FLC ¶91-285; 8 Fam LR 675 …. 10.19 Ashton & Ashton (1986) 11 Fam LR 457; FLC ¶91-777 …. 13.24 Astbury & Astbury (1978) 4 Fam LR 395; FLC ¶90-494 …. 10.25, 10.27 Attorney-General (Commonwealth) v Kevin & Jennifer (2003) 30 Fam LR 1; FLC ¶93-127 …. 5.13 Attorney-General (NSW) v Brewery Employees’ Union (NSW) & Watson & Townsend (Union Label case) (1908) 6 CLR 469 …. 4.3, 4.22 Attorney-General (Vic) v Commonwealth (Marriage Act case) (1962) 107 CLR 529 …. 4.6, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.20, 4.37, 5.85, 6.24, 6.109, 7.3 Attorney-General, Department of Family, Youth and Community Care & Thorpe (1997) 141 FLR 44 …. 8.155 Attorney-General’s Department & McGaffey [2014] FamCA 722 …. 8.155 Audet v Audet; Official Trustee in Bankruptcy (Intervenor) (1995) FLC ¶92-607 …. 15.61 Austin v Austin (1865) 34 Beav 257; 55 ER 634 …. 9.10 Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 …. 4.105 Australia and New Zealand Banking Group Ltd v Harper (1987) 11 Fam LR 649; (1988) FLC ¶91-938 …. 15.31 Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 …. 4.87 Axon v Axon (1937) 59 CLR 395 …. 5.75, 5.76 Aytugrul v The Queen [2012] HCA 15 …. 9.20

B B, Re (1972) 20 FLR 178 …. 5.48 B, Re (1983) 9 Fam LR 40; FLC ¶91-332 …. 5.44, 5.64, 5.69, 6.53, 6.108 B v F [1998] FamCA 239 …. 9.82 — v J (1996) 21 Fam LR 186; FLC ¶92-716 …. 7.20, 7.25, 7.26, 7.57, 11.65 — v J [2009] FamCAFC 103 …. 8.108 B (Infants) & B (Intervener) v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 30 Fam LR 181; FLC ¶93-141; [2003] FamCA 451 …. 4.66, 8.4, 8.33 B Pty Ltd v K (2008) 219 FLR 107; 39 Fam LR 488; [2008] FamCAFC 113 …. 4.87, 15.24 B & B (1985) 10 Fam LR 8; FLC ¶92-610 …. 12.33 B & B (Jurisdiction) (2003) 31 Fam LR 7; FLC ¶93-136 …. 8.66 B & B (No 2) (2000) 26 Fam LR 437; FLC ¶93-031 …. 13.21 B & B, Re: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755 …. 8.4, 8.20, 8.26, 8.27, 8.52, 8.55, 9.90, 9.119 B & C, Marriage of (1989) 13 Fam LR 299; FLC ¶92-043 …. 9.70 B & R and the Separate Representative (1995) 19 Fam LR 594; FLC ¶92-636 …. 8.79, 8.85,

9.78, 9.80, 9.81, 9.83 Babich v Sokur [2007] FamCA 236 …. 6.51 Baby A, Re [2008] FamCA 417 …. 8.124 Baby D, Re (No 2) (2011) 45 Fam LR 313 …. 8.124 Baby R (Life Support), Re [2015] FamCA 449 …. 8.117 Bagby & Bagby [2015] FamCAFC 209 …. 14.51 Bailey & Bailey (1978) FLC ¶90-424 …. 14.11, 15.4 Baily v Baily (1962) 3 FLR 476 …. 6.66 Bainrot, Marriage of (1976) 1 Fam LN No 2; FLC ¶90-003 …. 8.95 Baker v Landon (2010) 238 FLR 210 …. 5.96, 5.97, 5.100, 5.103, 5.104, 5.105, 5.110, 5.113, 7.19 Banh & Banh (1981) 6 Fam LR 643; FLC ¶91-010 …. 5.75 Bank Line Ltd v Arthur Capell and Co [1919] AC 435 …. 15.72 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 …. 4.97 Bant & Clayton [2015] FamCAFC 222 …. 3.3 Baranski & Baranski [2012] FamCAFC 18 …. 14.42 Barber, Marriage of (1991) 14 Fam LR 683; FLC ¶92-210 …. 11.79 Barker v Barker (1976) FLC ¶90-068 …. 9.68 Barkley & Barkley (1976) 1 Fam LR 11,554 …. 14.37 Barnett v Barnett (1973) 2 ALR 19; 21 FLR 335 …. 9.50, 9.63, 9.64 Barningham v Barningham [2011] FamCAFC 12 …. 9.43 Barriga & Barriga (No 2) (1981) 7 Fam LR 909; FLC ¶91-088 …. 5.75 Barrios & Sanchez (1989) 13 Fam LR 477; FLC ¶92-054 …. 8.160 Barry v Dalrymple [2010] FamCA 1271 …. 5.99, 5.105, 5.108 Barry & Barry [2011] FMCAfam 957 …. 10.36 Bartsch & Redman (No 2) [2014] FamCAFC 214 …. 9.72 Bass & Bass (2008) FLC ¶93-366 …. 8.89 Bassi v Maas (1999) 25 Fam LR 678; FLC ¶92-867 …. 15.33 Bateman v Kavan (2014) 52 Fam LR 648; [2014] FCCA 2521 …. 7.26, 11.65 Bates & Sawyer (1977) 3 Fam LN 71; FLC ¶90-319 …. 6.85 Batty, Marriage of (1986) 10 Fam LR 688; FLC ¶91-703 …. 6.69, 6.70 Baumgartner v Baumgartner (1987) 164 CLR 137; 11 Fam LR 915; (1988) DFC ¶95-058 …. 12.20 Bazley v Wesley Monash IVF Pty Ltd [2010] QSC 118 …. 7.30 Beach v Stemmler (1979) FLC ¶90-692 …. 9.130 Beard v McCarthy [2009] FamCA 737 …. 9.71, 9.75 Beasley & Jeffreys [2011] FMCAfam 713 …. 9.61 Beazley & Andreopolis [2009] FamCA 567 …. 9.25 Beck v Sliwka (1992) 15 FLR 520; FLC ¶92-296 …. 11.5, 11.13

— v Whitby [2012] FamCA 129 …. 8.48 Beeby v Beeby (1799) 1 Hag Ecc 789 …. 1.20, 1.26 Bell & Bell [2013] FMCAfam 6 …. 9.75 Bellinger v Bellinger [2002] 1 All ER 311; (2001) 2 Fam LR 1048 …. 5.13 Bendall v McWhirter [1952] 2 QB 466 …. 12.13 Beneke & Beneke (1996) 20 Fam LR 841; FLC ¶92-698 …. 14.45 Bennett & Bennett (1990) 14 Fam LR 397; (1991) FLC ¶92-191 …. 8.79, 8.107 Bennett & Bennett (2001) 28 Fam LR 231; FLC ¶93-088 …. 3.17, 9.128 Bergman v Bergman (2009) FLC ¶93-395; [2009] FamCAFC 27 …. 4.87, 4.88 Bernadette, Re (2011) 45 Fam LR 248; FLC ¶93-463 …. 8.116, 8.124 Bernieres & Dhopal [2015] FamCA 736 …. 7.12, 7.49, 7.54 Berrell & Berrell (No 3) [2013] FamCA 1012 …. 13.17 Berry v Da Costa (1866) LR 1 CP 331 …. 5.18 — v Wakley and Black (1988) 12 Fam LR 451 …. 4.97 Berry & Berry (1990) 14 Fam LR 215; FLC ¶92-155 …. 11.81 Berthiaume v Dastous [1930] AC 79 …. 5.64 Best, Marriage of (1993) 16 Fam LR 937; FLC ¶92-418 …. 10.4, 10.24, 11.84, 13.21, 14.23 Bevan, Marriage of (1993) 19 Fam LR 35; (1995) FLC ¶92-600 …. 10.3, 10.19, 10.21, 10.23, 10.25, 10.26, 10.27, 10.29, 10.36, 14.67 Bevan & Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600 …. 11.27 Bevan & Bevan (No 1) (2013) 49 Fam LR 387; FLC ¶93-545 …. 13.17, 13.18, 13.20, 13.29, 13.32, 13.34, 13.35, 13.36, 13.37, 13.38, 13.40, 14.65 Bevan & Bevan (No 2) (2014) 51 Fam LR 363; FLC ¶93-572 …. 13.17, 13.18 Biddulph & Biddulph (1977) FLC ¶90-243 …. 10.22, 10.27 Bieganski (B v B), Marriage of (1993) 16 Fam LR 353; FLC ¶92-357 …. 9.109, 9.110 Bienke v Bienke-Robson (1997) 23 Fam LR 569; FLC ¶92-786 …. 11.78 Bigg v Suzi (1998) 22 Fam LR 700; FLC ¶92-799 …. 15.70 Biggs & Biggs [2014] FamCA 1033 …. 8.89 Bilal v Omar (2015) 53 Fam LR 121; [2015] FamCAFC 30 …. 15.58 Biltoft, Marriage of (1995) 19 Fam LR 82; FLC ¶92-614 …. 13.14, 13.31 Bima [2014] FamCA 1170 …. 7.11 Births, Deaths and Marriages Registration Act 1997, Re (2000) 26 Fam LR 234; FLC ¶93021 …. 7.39 Bishop & Bishop [2013] FamCAFC 138; (2013) FLC ¶93-553 …. 14.53 Black v Black (2008) 38 Fam LR 503; FLC ¶93-357 …. 15.54 Black & Kellner (1992) 15 Fam LR 343; FLC ¶92-287 …. 13.33 Blake [2013] FCWA 1 …. 7.52 Blanch v Blanch & Crawford (1999) 24 Fam LR 325; FLC ¶92-837 …. 9.36 BLH & MH v SJW & MW [2010] QDC 439 …. 7.44

Blueseas Investment Pty Ltd v Mitchell & McGillivray (1999) 25 Fam LR 65; FLC ¶92-856 …. 15.15 Blunt v Blunt [1943] AC 517 …. 1.29, 1.30, 4.122 Boccard v Boccard [2013] FamCA 63 …. 9.107 Bogan v Macorig [2004] NSWSC 993 …. 10.54 Bolger & Headon [2014] FamCAFC 27; FLC ¶93-575 …. 14.7, 14.8 Bolt & Williams (1996) FLC ¶96-662 …. 12.36 Bolton, Marriage of (1992) 15 Fam LR 615; FLC ¶92-309 …. 11.82 Bonnici & Bonnici (1991) 15 Fam LR 138; FLC ¶92-272 …. 14.52, 14.53 Borriello & Borriello (1989) 13 Fam LR 415; FLC ¶92-049 …. 13.30 Bourke & Bourke (1994) FLC ¶92-479 …. 15.75 Boyce & Boyce [2015] FamCAFC 60 …. 9.6 Bozinovic & Bozinovic (1989) 99 FLR 155; 13 Fam LR 804; FLC ¶92-121 …. 6.72 Brady & Brady (1978) FLC ¶90-513; FLR 422 …. 10.26 Branchflower & Branchflower (1980) 6 Fam LR 188; FLC ¶90-857 …. 11.14 Branicki & Branicki [1990] FamCA 61 …. 14.58 Brear v Corcoles-Alfaro (1997) 22 Fam LR 219; FLC ¶92-768 …. 9.43 Brease v Brease (1997) 22 Fam LR 518; (1998) FLC ¶92-793 …. 14.54 Bremner & Bremner (1994) 18 Fam LR 407; (1995) FLC ¶92-560 …. 14.45 Brennan v Brennan (1953) 89 CLR 129 …. 6.93, 6.94, 6.95, 6.96 Brennan & Brennan (1991) 14 Fam LR 725; FLC ¶92-229 …. 13.30 Brianna v Brianna (2010) 43 Fam LR 309; FLC ¶93-437 …. 2.32, 7.8, 7.10, 7.12, 8.45, 8.67 Briers & Briers (1978) FLC ¶90-483 …. 3.15 Bright v Bright & Mackley (1995) FLC ¶92-570 …. 9.92 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 6.80, 6.81, 7.4 Brodie (Special Medical Procedure), Re [2008] FamCA 334 …. 8.124 Bromwich & Bromwich [2007] FamCA 157 …. 11.28 Brown v Brown (2007) 37 Fam LR 59; FLC ¶93-316 …. 10.36 — v Burke (2007) 39 Fam LR 276 …. 8.153 Brown & Brown (1982) 60 FLR 212; 8 Fam LR 1; FLC ¶91-232 …. 6.50, 6.51 Brown & Brown (2005) 33 Fam LR 246 …. 14.26, 14.46 Brown & Brown [2005] FamCA 1165 …. 10.36 Brown & Pederson (1988) 12 Fam LR 506; FLC ¶91-967 …. 8.88 Brown & Pederson (1991) Fam LR 173; (1992) FLC ¶92-271 …. 9.88 Brown and Brown (1980) 6 Fam LR 352; FLC ¶90-875 …. 8.59 Browne & Green (1999) 25 Fam LR 482; [1999] FamCA 1483; FLC ¶92-873 …. 14.2, 14.4, 14.36 Browne & Keith [2015] FamCAFC 143 …. 9.121

Bryant, Marriage of (1996) 20 Fam LR 575 …. 11.85 Buciu v Sabau (1997) 22 Fam LR 75; FLC ¶92-765 …. 6.108 Bucknell v Bucknell (2009) FamCAFC 177 …. 10.37 Budding v Budding [2009] FamCAFC 165 …. 10.36 Bulleen & Bulleen (2010) 43 Fam LR 489; [2010] FamCA 187 …. 14.28, 14.47 Bunting v Lepingwell (1585) 4 Co Rep 29; 76 ER 950 …. 5.22 Burke & Burke (1992) 16 Fam LR 324; 1993 FLC ¶92-356 …. 10.20 Bushby & Bushby (1988) FLC ¶91-919 …. 14.11 BZ v DAK [2007] FMCAfam 596 …. 9.6

C C (No 2), Re (1992) 15 Fam LR 355; FLC ¶92-284 …. 7.13, 11.22, 11.28, 11.29 C v B (2007) 38 Fam LR 1 …. 9.130 — v C [1942] NZLR 356 …. 6.31, 6.41 — v G [2002] FMCAfam 361 …. 11.88 C & C (1998) 146 FLR 406; 23 Fam LR 491; FLC ¶92-824 …. 6.11 C & D (falsely called C) (1979) 28 ALR 524; 35 FLR 340; 5 Fam LR 636; FLC ¶90-636 …. 6.42, 6.43, 6.108 C & J, Re (1996) 20 Fam LR 930; FLC ¶92-697 …. 9.109, 9.110 Cabbell & Cabbell [2009] FamCAFC 205 …. 14.47 Caddy & Miller (1986) 10 Fam LR 858; FLC ¶91-720 …. 12.38, 12.39 Cadman v Hallett (2014) 52 Fam LR 149; FLC ¶93-603; [2014] FamCAFC 142 …. 5.101, 5.104, 5.107, 6.119, 6.120, 12.44, 13.6 Cain & Cain (1987) 11 Fam LR 540; FLC ¶91-808 …. 6.108, 12.38 Calder & Calder (No 2) [2014] FamCA 1106 …. 14.47 Cales v Cales (2010) 44 Fam LR 376; FLC ¶93-459 …. 8.50, 9.122 Callaghan v Andrew-Hanson [1992] 1 All ER 56 …. 6.96 Calverley v Green (1984) 155 CLR 242; 9 Fam LR 940; FLC ¶91-565 …. 12.20 Cameron v Walker (2010) FLC ¶93-445 …. 8.112 Cameron & Helie [2004] FMCAfam 685 …. 11.17 Campbell v Kuskey (1998) 22 Fam LR 674; FLC ¶92-795 …. 13.31 Cantarella, Marriage of (1976) 1 Fam LR 11,483; FLC ¶90-056 …. 13.8, 13.11 Caracini v Paglietta [2009] FamCAFC 188 …. 8.108 Caretti, Marriage of (1977) 3 Fam LR 11,374; FLC ¶90-270 …. 6.83 Carey & Carey (1994) 18 Fam LR 116; FLC ¶92-488 …. 11.82 Carlson v Bowden (2008) 40 Fam LR 327 …. 9.5, 9.7, 9.61 Carlson & Fluvium [2012] FamCA 32 …. 9.25 Carlton & Bissett (2013) 49 Fam LR 503; [2013] FamCA 13 …. 7.8, 8.44

Carnell v Carnell (2006) 36 Fam LR 168; 204 FLR 122 …. 11.35 Carpenter, Marriage of (1993) 17 Fam LR 259; (1994) FLC ¶92-444 …. 11.6, 11.18, 11.30 Carpenter, Marriage of (1994) 18 Fam LR 542; (1995) FLC ¶92-583 …. 11.9, 11.26 Carpenter v Lunn (2008) FLC ¶93-377 …. 8.87, 9.101 Carr v Vincent (No 2) [2011] FMCAfam 1308 …. 11.5 Carriel & Lendrum [2015] FamCAFC 43 …. 8.45, 8.108 Carrington & Gunby (No 2) [2013] FamCA 433 …. 8.134 Carroll & Maybury [2013] FCCA 288 …. 11.76 Carvill & Carvill (1984) 9 Fam LR 1055; FLC ¶91-586 …. 13.21 Caska v Caska (1998) 23 Fam LR 659; FLC ¶92-826 …. 10.36, 10.37 Caska & Caska (2001) 28 Fam LR 307; (2002) FLC ¶93-092 …. 10.37 Cassidy v Cassidy [2009] FamCAFC 125 …. 9.5 — v Sibly [2012] FamCA 245 …. 9.52, 9.53 Cattanach & Leavens (1977) 3 Fam LR 11,276; FLC ¶90-246 …. 9.52 Cauchi & Cauchi (1994) FLC ¶92-447 …. 3.19 Cawthorn, Marriage of (1998) 23 Fam LR 86; FLC ¶92-805 …. 15.72, 15.73 CDJ v VAJ (No 1) (1998) 197 CLR 172; 23 Fam LR 755; FLC ¶92-828 …. 4.120, 8.66, 8.107, 8.155, 9.128 CDW v LVE [2015] WASCA 247 …. 8.108 Cerini v Cerini [1998] FamCA 143 …. 13.27 Champness v Hanson (2009) FLC ¶93-407 …. 9.26 Chandler & Chandler (1981) 6 Fam LR 736; FLC ¶91-008 …. 9.33 Chang v Su (2002) 170 FLR 244; FLC ¶93-117 …. 13.33 — v — (2002) 23(19) Leg Rep SL4 …. 13.33 Chapman, Marriage of (1979) FLC ¶90-671 …. 10.19 Chapman & Chapman (2014) FLC ¶93-592; [2014] FamCAFC 91 …. 13.36, 13.37, 13.38 Chapman & Jansen, Re (1990) 13 Fam LR 853; FLC ¶92-139 …. 4.97 Chapman & Palmer (1978) 4 Fam LR 462; FLC ¶90-510 …. 9.129 Chappell v Chappell (2008) 39 Fam LR 627; FLC ¶93-382 …. 9.5, 9.7, 9.21 Charles Osenton & Co v Johnston [1942] AC 130 …. 4.122 Chemaisse, Re (1987) 11 Fam LR 392; FLC ¶91-812 …. 15.50 Chilcott v Freeman [2011] TASSC 30; (2011) 20 Tas R 322 …. 10.49 Child Support Registrar & Ahern [2014] FamCAFC 105 …. 11.84 Child Support Registrar & Crowley [2015] FamCAFC 76 …. 11.76 Childers & Leslie [2008] FamCAFC 5 …. 8.132 Chorn & Hopkins (2004) 32 Fam LR 518; FLC ¶93-204 …. 13.27 Christian & Donald (2004) 39 Fam LR 547; (2008) FLC ¶93-367 …. 11.81 Church v S Overton (2008) 40 Fam LR 357 …. 9.94

Churchill & Churchill [2015] FamCA 491 …. 13.29 Cilento, Marriage of (1980) 6 Fam LR 35; FLC ¶90-847 …. 8.99 CK & SML [2004] FMCAfam 119 …. 11.88 Clarke, Marriage of (1986) 11 Fam LR 364; FLC ¶91-778 …. 6.68, 6.85, 6.87 Clauson, Marriage of (1995) 18 Fam LR 693; FLC ¶92-595 …. 10.3, 10.4, 10.36, 13.14, 14.23, 14.58, 14.59, 14.60, 14.63, 14.67 Cleary, Marriage of (1991) 15 Fam LR 245; (1992) FLC ¶92-278 …. 11.81 Clifton & Stuart (1990) 14 Fam LR 511; (1991) FLC ¶92-194 …. 15.70 Clisbey v Viges [2011] FamCA 611 …. 6.120, 6.121 Cobb v Cobb [1955] 2 All ER 696 …. 12.13 Coghlan, Marriage of (2005) 33 Fam LR 414; FLC ¶93-220 …. 14.17, 15.6, 15.8, 15.10, 15.11 Cohen v Sellar [1926] 1 KB 536 …. 5.20 Cole v Childs [2010] FMCAfam 631 …. 5.106 Coleman v Shang [1961] AC 481 …. 5.6 Collins, Marriage of [1987] FLC ¶91-800 …. 15.33 Collins, Marriage of (1990) 14 Fam LR 563 …. 14.67 Collins, Marriage of (1992) 16 Fam LR 261; (1993) FLC ¶92-343 …. 11.14 Collins & Collins (1977) 3 Fam LR 11,424; FLC ¶90-286 …. 13.12 Collins & Collins (1990) FLC ¶92-149 …. 14.58 Collins & Collins (1992) 16 Fam LR 261; (1993) FLC ¶92-343 …. 10.37 Collins & Ricardo (No 2) [2015] FamCAFC 77 …. 8.69 Collins & Tangtoi [2010] FamCA 878 …. 7.49 Collivas v Cassimatis [2007] FMCAfam 293 …. 8.107 Collu v Rinaldo [2010] FamCAFC 53 …. 8.63 Commissioner for Taxes (NT) v Liveris (1990) 14 Fam LR 336; FLC ¶92-174 …. 15.40 Commissioner of Taxation v Worsnop (2009) 40 Fam LR 552; FLC ¶93-392; [2009] FamCAFC 4 …. 13.31, 15.64 Commonwealth v Australian Capital Territory (2013) 250 CLR 441; 304 ALR 204; 88 ALJR 118; [2013] HCA 55 …. 1.62, 4.3, 5.11 Connor v Bourke [2008] FMCAfam 69 …. 9.60 Connors & Taylor [2012] FamCA 207 …. 7.19 Cook, Re; Ex parte C (1985) 156 CLR 249 …. 4.55 Coon v Cox (1993) 17 Fam LR 692; (1994) FLC ¶92-464 …. 11.9, 11.13 Cooper v Cooper (1976) 1 Fam LR 11,531; FLC ¶90-234 …. 9.86, 9.87 — v Crane [1891] P 369 …. 6.26, 6.28, 6.29 Cooper & Casey (1995) 18 Fam LR 433; FLC ¶92-575 …. 8.157 Cooper & Cooper (1989) FLC ¶92-017 …. 11.37 Corbett v Corbett [1971] P 83; [1970] 2 All ER 33; [1970] 2 WLR 1306 …. 5.13, 6.43

Cormick v Salmon (1984) 156 CLR 170 …. 4.55 Cosgrove (No 2), Marriage of (1996) 20 Fam LR 761; FLC ¶92-701 …. 11.24, 11.26, 11.27, 11.29, 11.30 Cosgrove & Cosgrove (1995) 20 Fam LR 751; FLC ¶92-700 …. 11.24, 11.29 Cotton, Marriage of (1983) FLC ¶91-330 …. 9.87, 9.88 Coulter & Coulter (1990) 13 Fam LR 421; FLC ¶92-104 …. 14.11, 15.4 Coventry & Coventry & Smith (2004) 31 Fam LR 608; FLC ¶93-184 …. 13.24 Cowley & Yuvaves [2015] FamCA 111 …. 7.52, 7.54 Cowling v Cowling (1998) 22 Fam LR 776; FLC ¶92-801 …. 8.99, 8.100 Cox & Pedrana [2013] FamCAFC 48 …. 9.3 CP, Re (1997) 21 Fam LR 486; FLC ¶92-741 …. 9.84 Crabtree v Crabtree (1963) 5 FLR 307 …. 6.78, 6.79 Craig & Hall [2012] FamCA 88 …. 9.91 Craig & Rowlands (2013) 49 Fam LR 136; FLC ¶93-535 …. 15.6, 15.11 Crampton v Crampton [2006] FamCA 528 …. 14.36 Crapp, Marriage of (No 2) (1979) 5 Fam LR 47; FLC ¶90-615 …. 13.8, 13.22, 14.11, 15.4 Craven, Marriage of (1976) 1 Fam LR 11,276; FLC ¶90-049 …. 9.117 Craven v Crawford-Craven [2008] FamCAFC 93 …. 9.69 Crawford v Dean [2012] FamCA 107 …. 8.96 Crawford & Crawford (1979) 5 Fam LR 106 …. 14.67 Crestin v Crestin (2008) 39 Fam LR 420; FLC ¶93-368 …. 8.71, 9.92 Crisp v Clarence [2015] FamCA 964 …. 5.107, 7.18 — v Crisp [2012] FMCAfam 556 …. 9.107 Cross, Marriage of (1995) 120 FLR 57; 19 Fam LR 468; FLC ¶92-628 …. 6.9, 6.96 Cross & Beaumont [2007] FamCA 568 …. 2.34 Crowley v Pappas [2013] FamCA 783 …. 5.101 Cullen, Marriage of (1981) 8 Fam LR 35; FLC ¶91-113 …. 8.96, 8.105 Curby v Curby (1971) 17 FLR 127 …. 6.56

D D, Marriage of (2001) 27 Fam LR 736 …. 6.71 D, Re …. 5.40 D v D [2005] FamCA 1462 …. 14.30 — v F [2001] FamCA 832 …. 9.61 — v McA (1986) 11 Fam LR 214; DFC ¶95-030 …. 5.95, 6.117, 6.123 — v N [2002] FMCAfam 66 …. 9.69 D & C (Imprisonment for Breach of Contact Orders) (2004) FLC ¶93-193 …. 8.138 D & D (1984) 10 Fam LR 73; FLC ¶91-593 …. 15.31

D & E, Re (2000) 26 Fam LR 310 …. 7.39 D & Y (1995) 18 Fam LR 662; FLC ¶92-581 …. 8.107 D’Agostino, Marriage of (1976) 2 Fam LR 11,322; FLC ¶90-130 …. 9.86 Dahl v Hamblin (2011) 254 FLR 49; 46 Fam LR 229; FLC ¶93-480; [2011] FamCAFC 202 …. 5.97, 5.99, 5.104, 5.106, 6.116, 6.122, 12.44 Daines & Daines (1985) 10 Fam LR 597 …. 4.124 Dakin v Sansbury [2010] FMCAfam 628 …. 5.99, 5.109 Damiani v Damiani [2010] FamCA 217 …. 6.102 — v — (No 2) [2009] FamCAFC 215 …. 9.6 Dandridge & Barron [2012] FMCAfam 141 …. 5.111 Danford & Danford [2011] FamCAFC 54 …. 14.12, 14.55 Daramy & Sane [2015] FamCA 180 …. 14.13 Davalas & Davalas [2015] FamCA 679 …. 14.36 David (No 2) (costs), Re (1998) 23 Fam LR 139; FLC ¶92-809 …. 8.76 Davidson, Marriage of (1990) 14 Fam LR 817; FLC ¶92-197 …. 13.24 Davidson, Marriage of (No 2) (1994) 17 Fam LR 656; [1994] FLC ¶92-469 …. 10.36, 15.33 Davies v Messner (1975) 12 SASR 333 …. 5.20 Davies v Richardson [2011] NSWSC 810 …. 6.113, 6.117 Davis v Davis [1964] VR 278 …. 10.14 — v — (2007) 38 Fam LR 671 …. 9.60, 9.82 Davis & Davis (1976) 1 Fam LR 11,522; FLC ¶90-062 …. 3.15 Davis & Davis (1982) 8 Fam LR 975; FLC ¶91-319 …. 3.15 Davut and Raif (1994) 18 Fam LR 237; FLC ¶92-503 …. 13.15 Dawes, Marriage of (1989) 13 Fam LR 599; (1990) FLC ¶92-108 …. 14.12, 14.21 Day, Marriage of (1992) 109 FLR 148; (1993) FLC ¶92-333 …. 11.37 Day, Marriage of (1994) FLC ¶92-505 …. 8.66 De Andrade, Marriage of (1995) 19 Fam LR 271 …. 12.39 De Angelis v De Angelis (2000) 27 Fam LR 133; (2001) FLC ¶93-067 …. 3.23 De Angelis & De Angelis (1999) 30 Fam LR 304; (2003) FLC ¶93-133 …. 13.21, 14.36 De Gier, Marriage of (1991) 14 Fam LR 796; FLC ¶92-235 …. 11.79 De L v Director-General NSW Dept of Community Services (1996) 187 CLR 640; 20 Fam LR 390; FLC ¶92-706; [1996] HCA 5 …. 8.75, 8.149, 8.155, 8.158 De Lewinski v Director-General New South Wales Department of Community Services (1996) 136 ALR 201; 70 ALJR 532 …. 8.149 De Lewinski v Director-General, New South Wales Department of Community Services (1997) 21 Fam LR 413; FLC ¶92-737 …. 8.154, 8.158 De Smeth, Marriage of (1992) 16 Fam LR 314; (1993) FLC ¶92-349 …. 11.91 Degraves v Searle [2013] FCCA 660 …. 2.60, 2.61 Dein and Dein (1989) 12 Fam LR 853; FLC ¶92-014 …. 14.66

Deiter & Deiter [2011] FamCAFC 82 …. 9.122 Dekker & Dekker [2014] FCWA 61 …. 13.38 Delahey & Garra-Marsh [2015] FCCA 84 …. 15.49 Delamarre v Asprey [2013] FamCA 214 …. 5.109 — v — (2014) FLC ¶93-616 …. 5.102 Dench & Dench (1978) 6 Fam LR 105; FLC ¶90-469 …. 10.36, 14.67 Deniz, Marriage of (1977) 31 FLR 114; 7 Fam LN N3; FLC ¶90-252 …. 6.32, 6.34, 6.35, 6.37 Dennett & Norman [2007] FamCA 57 …. 9.60 Dennis & Pradchaphet [2011] FamCA 123 …. 7.51 Dennison v Wang [2010] FamCAFC 182 …. 9.91, 9.106 Department of Communities, Child Safety and Disability Services v Garning (Discharge Application) [2012] FamCA 839 …. 8.158 Department of Community Services & Frampton (2007) 37 Fam LR 583; FLC ¶93-340 …. 8.157 Department of Community Services & Raddison [2007] FamCA 1702 …. 8.153 Department of Family and Community Services & Haura [2015] FamCA 72 …. 8.117 Department of Family and Community Services & Raho [2013] FamCA 530 …. 8.155 Department of Family and Community Services & Valli [2013] FamCA 1004 …. 8.155 Department of Human Services v Brouker (2010) 44 Fam LR 486; FLC ¶93-446 …. 3.17 Deputy Child Support Registrar v Willemse (1994) FLC ¶92-510 …. 11.54 Deputy Child Support Registrar & Froehlich (1990) 14 Fam LR 526; (1991) FLC ¶92-203 …. 11.55 Deputy Child Support Registrar & Harrison (1995) 20 Fam LR 101; (1996) FLC ¶92-656 …. 11.54 Devonshire v Hyde (2002) DFC ¶95-247; [2002] NSWSC 30 …. 10.54 Devopoulos & Devopolous [2014] FamCA 224 …. 13.33 Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154 …. 14.8, 14.47 Dickson, Marriage of (1999) 24 Fam LR 460; FLC ¶92-843 …. 14.61 Diessel & Diessel (1980) 6 Fam LR 1; FLC ¶90-841 …. 6.98 Diggins, Marriage of (1992) FLC ¶92-299 …. 7.11 Director-General, Department of Child Safety v Milson [2008] FamCA 872 …. 8.156 Director-General, Department of Communities, Child Safety and Disability Services & Delaney (No 2) [2015] FamCA 683 …. 8.157 Director-General, Department of Community Services (NSW) v D (2007) 37 Fam LR 595 …. 9.59, 9.130 Director-General, Department of Community Services v M & C (1998) 24 Fam LR 178; FLC ¶92-829; [1998] FamCA 1518 …. 8.155 Director-General, Department of Families & RSP (2003) 30 Fam LR 566; FLC ¶93-152 …. 8.157

Director-General, Department of Families, Youth & Community Care v Reissner (1999) 25 Fam LR 330; FLC ¶92-862 …. 9.93 — v Bennett (2000) 26 Fam LR 71; FLC ¶93-011 …. 8.159 Director-General, Department of Family and Community Services & Tsvetan [2011] FamCA 796 …. 8.155 Director-General of Department of Community Services v Crowe (1996) 21 Fam LR 159; FLC ¶192-717 …. 8.156, 8.158 Director-General of Family and Community Services & Davis (1990) 14 Fam LR 381; FLC ¶92-182 …. 8.149, 8.157 Director-General of the Department of Human Services & Tran (2010) 44 Fam LR 1; FLC ¶93-433 …. 8.23 Director of Public Prosecutions (NI) v Lynch [1975] AC 653 …. 6.30 DJL v The Central Authority (2000) 201 CLR 226 …. 4.129 DJM v JLM (1998) 23 Fam LR 396; FLC ¶92-816 …. 10.4, 10.21, 10.25, 10.27, 11.82, 13.27, 13.28, 14.59 DL & W (2012) FLC ¶93-496 …. 2.43 Dobbs v Brayson (2007) 215 FLR 30; FLC ¶93-346; [2007] FamCA 1261 …. 8.138, 8.140 — v Brayson (No 2) (2007) 38 Fam LR 95; FLC ¶93-354 …. 8.130 Dodd & Dodd v Stuart (1976) 1 Fam LR 11,540 …. 8.103 Dodge & Krapf & Krapf, In the matter of (1991) FLC ¶92-214 …. 11.33, 11.38 Doherty, Marriage of (1995) 20 Fam LR 137; (1996) FLC ¶92-652 …. 10.45, 14.40 Doherty & Doherty (2006) FLC ¶93-256; [2006] FamCA 199 …. 15.11 Doherty & Doherty [2014] FamCAFC 20 …. 8.62 Donald & Forsyth (2015) 53 Fam LR 171; FLC ¶93-650; [2015] FamCAFC 72 …. 15.50 Donnell v Dovey (2010) 42 Fam LR 559; FLC ¶93-428; [2010] FamCAFC 15 …. 8.62, 9.61, 9.81, 9.83 Dornom & Dornom (1984) FLC ¶91-556 …. 12.38 Dougherty & Dougherty (1987) 163 CLR 278; 11 Fam LR 577; FLC ¶91-823 …. 12.42, 14.7 Douglas v Longano (1981) 147 CLR 212 …. 7.5 Dovey, Re; Ex parte Ross (1979) 141 CLR 526; (1979) 5 Fam LR 1; FLC ¶90-616 …. 15.14 Dowal v Murray (1978) 143 CLR 410 …. 4.55 Dow-Sainter, Marriage of (1980) FLC ¶90-890 …. 10.27 Doyle, Marriage of (1989) FLC ¶92-027 …. 12.36 Doyle, Marriage of (1992) 15 Fam LR 274; FLC ¶92-286 …. 9.68 DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 27 Fam LR 569; FLC ¶93-081 …. 8.149, 8.157 Drew, Marriage of; Lovett (Interveners) (1993) 16 Fam LR 536 …. 9.58 Dridi v Fillmore [2001] NSWSC 319 …. 10.54

DRP v AJL (2004) FLC ¶98-022 …. 11.66 DS v DS (2003) 32 Fam LR 352; FLC ¶93-165 …. 8.81, 8.83 Dudley v Chedi [2011] FamCA 502 …. 7.51, 8.48 Duff, Marriage of (1977) 3 Fam LR 11,211; FLC ¶90-217 …. 13.20, 13.22, 14.66 Duncan, Marriage of (1991) 104 FLR 335; FLC ¶92-218 …. 11.33 Dunne & P (No 2) (2004) 32 Fam LR 441; FLC ¶93-205 …. 3.23 Dunst & Dunst [2014] FamCA 964 …. 8.62, 8.112 Durham v Durham (1885) LR 10 PD 80 …. 6.47 Duroux v Martin (1993) 17 Fam LR 130; FLC ¶92-432 …. 7.11, 7.12 Dyer & Dyer (1977) FLC ¶90-299 …. 9.51

E E (children) (abduction: custody appeal), Re [2011] 4 All ER 517 …. 8.157 E & E (No 2), Marriage of (1979) 5 Fam LR 244; FLC ¶90-645 …. 9.58, 9.92 Eastman & Eastman [2015] FamCA 808 …. 15.15 Ebner & Pappas (2014) FLC ¶93-619; [2014] FamCAFC 229 …. 15.68, 15.71 Eddington & Eddington (No 2) (2007) FLC ¶93-349 …. 9.22 Edmore v Bala [2011] FamCA 731 …. 7.49 Edwards; Mark Edwards, the Estate of the Late, Re [2011] NSWSC 478 …. 7.30 Edwards & Edwards (2006) FLC ¶93-306 …. 8.107 EJK v TSL (2006) 35 Fam LR 559; FLC ¶93-287 …. 8.160 El Kazemde & Hanif [2014] FamCA 452 …. 8.112 Elder & Elder [2009] FamCAFC 224 …. 10.35 Elgin & Elgin [2015] FamCAFC 155 …. 13.19 Eliades, Marriage of (1981) 6 Fam LR 916; FLC ¶91-022 …. 10.18 Elizabeth, Re (1989) 13 Fam LR 47; FLC ¶92-023 …. 8.118 Elliott & Wilcox (1996) 20 Fam LR 567; FLC ¶92-687 …. 15.70 Ellison & Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602 …. 7.8, 7.10, 7.49, 7.52, 7.53 Elspeth v Peter [2006] FamCA 1385 …. 8.62, 9.5, 9.75, 9.76, 9.96 — v — [2007] FamCA 254 …. 8.141 Elspeth & Peter (2007) 37 Fam LR 696; FLC ¶93-341 …. 8.135 Engelbrecht & Moss [2015] FCWA 19 …. 13.38, 13.39 English & English (1986) 10 Fam LR 808; FLC ¶91-729 …. 3.15 Epperson v Dampney (1976) 10 ALR 227; FLC ¶90-061 …. 8.87, 9.11 Espie & Espie (1983) 9 Fam LR 123; FLC ¶91-347 …. 6.108 Eurfrosin & Eurfrosin [2014] FamCAFC 191 …. 13.40, 14.54 Evans, Marriage of (1990) 14 Fam LR 136; FLC ¶92-150 …. 6.100

Evans, Marriage of (1992) 15 Fam LR 749; FLC ¶92-320 …. 10.36 Evans v Bartlam [1937] AC 473 …. 4.122 — v Evans (1790) 1 Hag Con 35 …. 1.22 Evans & Evans (1978) FLC ¶90-435; 30 FLR 570 …. 10.23, 10.27 Evans & Spicer (1992) 15 Fam LR 749; FLC ¶92-320 …. 10.38 Evans & the Public Trustee (1991) 14 Fam LR 646; FLC ¶92-223 …. 12.36 Evelyn, Re (1998) 23 Fam LR 53; FLC ¶92-807 …. 7.40, 9.14, 9.54 Evelyn, Re (FamCA, Jordan J, 19 December 1997, unreported) …. 7.40 Everett & Everett [2014] FamCAFC 152 …. 11.29

F F, Re; Ex parte F (1986) 161 CLR 376 …. 4.55 F (Hague Convention: Child’s Objections), Re (2006) 36 Fam LR 183; FLC ¶93-277 …. 8.158 F v F (2007) 38 Fam LR 52 …. 9.121 — v Z (2005) 193 FLR 218; [2005] FMCAfam 394 …. 7.8, 7.10, 7.12 F & C & Child Representative [2004] FamCA 568 …. 8.107 F & F (1982) 8 Fam LR 29; FLC ¶91-214 …. 10.31, 10.34 F & N, Marriage of (1987) 11 Fam LR 664; FLC ¶91-813 …. 9.46, 9.47 F & R, Marriage of (1992) 15 Fam LR 533; FLC ¶92-300 …. 7.11, 7.14 F & R (No 2), Marriage of (1992) 15 Fam LR 662; FLC ¶92-314 …. 8.86 Faden & Faden [2014] FamCA 1182 …. 3.3 Fagan (dec’d), Re (1980) 6 Fam LR 813 …. 6.123 Falk, Marriage of (1977) 15 ALR 189; 29 FLR 463; 3 Fam LR 11,238; FLC ¶90-247 …. 6.65, 6.68, 6.70, 6.71, 6.82 Fan & Lok, Estate of the Late [2015] FamCA 300 …. 15.49 Fane-Thompson & Fane-Thompson (1981) 7 Fam LR 660; FLC ¶91-053 …. 13.15 Farmer v Bramley (2000) 27 Fam LR 316; FLC ¶93-060 …. 14.9, 14.10, 14.48, 14.49, 14.53, 14.54 Farnell, Marriage of (1996) 20 Fam LR 513; FLC ¶92-681 …. 13.27 Fedele & Fedele (1986) 10 Fam LR 1069; FLC ¶91-744 …. 3.15 Fellows v Fellows (1988) FLC ¶91-910 …. 15.72 Feltus, Marriage of (1977) 2 Fam LR 11,665; FLC ¶90-212 …. 6.85 Fencott v Muller (1983) 152 CLR 570 …. 4.6, 4.84 Fender v St John-Mildmay [1938] AC 1 …. 6.91 Fenech & Fenech (1976) 1 Fam LR 11,250; FLC ¶90-035 …. 6.66, 6.70 Fenton v Marvel (2013) FLC ¶93-550; [2013] FamCAFC 132 …. 5.93, 12.44 Ferguson, Marriage of (1978) 4 Fam LR 312; FLC ¶90-500 …. 10.33, 14.34

Ferraro, Marriage of (1992) 16 Fam LR 1; (1993) FLC ¶92-335 …. 13.14, 14.21, 14.22, 14.23, 14.25, 14.26, 14.27, 14.30, 14.31, 14.48 Fevia & Fevia (2009) 42 Fam LR 50; FLC ¶93-411 …. 15.49 Fewster & Drake [2015] FamCA 602 …. 15.50 Fickling, Marriage of (1996) 20 Fam LR 258; FLC ¶92-664 …. 14.67 Field & Field (1991) FLC ¶92-227 …. 11.53, 11.55 Fielding v Nichol (2014) FLC ¶93-617; [2014] FCWA 77 …. 13.18, 13.38, 13.40 Fields v Bower [2012] FamCA 189 …. 9.63 Fields & Smith (2015) 53 Fam LR 1; FLC ¶93-638; [2015] FamCAFC 57 …. 11.76, 14.7, 14.14, 14.31, 14.32, 14.50, 14.58 Figgins v Figgins (2002) 29 Fam LR 544; FLC ¶93-122 …. 11.76, 12.25, 14.28, 14.52 Findlay v Punyawong [2011] FamCA 503 …. 7.51 Firth & Firth (1988) 12 Fam LR 547; FLC ¶91-971 …. 9.73, 9.76 Fisher v Fisher (1986) 161 CLR 438; 11 Fam LR 11; FLC ¶91-767 …. 4.20, 4.45, 4.46, 12.33, 12.36 Fisher-Oakley & Kittur [2014] FamCA 123 …. 7.52 Fitzgerald (As child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123 …. 8.76 Fitzgerald v Fitzgerald (1869) LR 1 P & D 694 …. 6.62 Fitzgerald & Robinson (1978) 3 Fam LN No 78; FLC ¶90-401 …. 9.51, 9.52 Fitzpatrick & Fitzpatrick (2005) 33 Fam LR 272; FLC ¶93-227 …. 9.109 Flanagan v Handcock (2001) 181 ALR 184 …. 9.128 — v — (2001) 27 Fam LR 615; FLC ¶93-074 …. 3.17, 9.128, 9.129 FM v FM (1997) 21 Fam LR 237; (1996) FLC ¶92-738 …. 11.19 Folston v Folston [2009] FamCA 1118 …. 6.108 Fooks & McCarthy (1994) FLC ¶92-450 …. 9.130 Ford v Stier [1896] P 1 …. 6.44 Ford & Ford & Department of Child Safety (2007) FLC ¶93-337 …. 3.47 Forsythe v Latimer [2010] FMCAfam 478 …. 11.66 Foster & Foster (1977) FLC ¶90-281 …. 8.90 Fountain v Alexander (1982) 150 CLR 615 …. 4.55 Fowler & Fowler (1980) 5 Fam LR 750; FLC ¶90-808 …. 10.37 Fox v Public Trustee (1983) 9 Fam LR 275 …. 5.75 Fox & Kent [2015] FCCA 2143 …. 8.86 Fragomeli, Marriage of (1993) 16 Fam LR 698; FLC ¶92-393 …. 9.117 Franklin & McLeod (1993) 17 Fam LR 793 …. 15.72 Franks & Franks (1976) 1 Fam LR 11,341; FLC ¶90-032 …. 6.69 Freeman, Marriage of (1986) 11 Fam LR 293; (1987) FLC ¶91-857 …. 8.105 Freeman v Rouse [2007] FMCAfam 752 …. 9.6

French v Winter [2012] FMCAfam 256 …. 2.60 French & Fetala [2014] FamCAFC 57 …. 9.21 Fullgrabe & Fullgrabe [2015] FCWA 9 …. 13.38

G G v C [2006] FamCA 994 …. 9.27 — v G [2004] FamCA 1179 …. 4.125 — v H (1993) FLC ¶92-432 …. 7.10 — v — (1994) 18 Fam LR 180; FLC ¶92-504 …. 7.13 G & G [2007] FCWA 80 …. 7.28 Gabel & Meltzer [2014] FCCA 604 …. 9.107 Gabel & Yardley (2008) FLC ¶93-386 …. 15.39 Gainforth v Gainforth [2012] FamCAFC 24 …. 8.62 Gallaghan v Gallaghan (1966) 9 FLR 331 …. 9.96 Galloway & Midden (No 2) (2014) FLC ¶93-586; [2014] FamCAFC 60 …. 13.21 Gamble, Marriage of (1978) 4 Fam LN 28; FLC ¶90-452 …. 11.21, 11.29 Gamer & Gamer (1988) FLC ¶91-932 …. 14.20 Ganem & Ganem (No 2) [2013] FamCA 257 …. 8.141 Ganter v Whalland (2001) 28 Fam LR 260; DFC ¶95-240 …. 7.28, 7.29, 11.65 Gazzo v Comptroller of Stamps; Ex parte Attorney-General (Victoria) (1981) 149 CLR 227 …. 4.46 GDPW & IDPW (2004) 33 Fam LR 338; FLC ¶93-206 …. 4.67, 8.117 Gebert & Gebert (1990) 14 Fam LR 62; FLC ¶92-137 …. 15.70, 15.76 Gelley & Gelley (No 2) (1992) FLC ¶92-291 …. 15.31 Genish-Grant v Director-General, Department of Community Services (2002) 29 Fam LR 51; FLC ¶93-111 …. 8.157 George & Radford (1976) 1 Fam LR 11,510; FLC ¶90-060 …. 9.129 Georgeson, Marriage of (1995) 19 Fam LR 302; FLC ¶92-618 …. 14.21, 14.23 Georgiades & Georgiades [2015] FamCAFC 115 …. 13.29 Gerges, Marriage of (1990) 14 Fam LR 535; (1991) FLC ¶92-204 …. 11.78 Gibson & Gibson (1981) FLC ¶91-049 …. 9.63 Gillespie v Bahrin (1993) 16 Fam LR 642; (1992) FLC ¶92-388 …. 3.16 Gillick v West Norfolk & Wisbech Area Health Authority [1985] 3 All ER 402 …. 8.20, 8.30, 8.31, 8.32, 8.33, 8.34, 8.124, 9.41, 9.43, 9.96 Gillim & Gillim (No 2) (2014) FamCA 701 …. 15.16 Gilmore, Marriage of (1993) 16 Fam LR 285; FLC ¶92-353 …. 8.160, 12.39 Gilmour, Marriage of (1994) 18 Fam LR 646; (1995) FLC ¶92-591 …. 11.85 Gissing v Gissing [1971] AC 886 …. 12.14

Gitane & Velacruz (2008) 39 Fam LR 460; FLC ¶93-371 …. 15.68, 15.75 Godfrey v Sanders (2007) 208 FLR 287 …. 9.27 Gollins v Gollins [1964] AC 644 …. 1.32, 1.33 Goode v Goode (2006) 36 Fam LR 422; FLC ¶93-286 …. 8.26, 8.62, 8.63, 8.100, 8.101, 8.102, 9.3, 9.4, 9.121 Goodwin & Goodwin (1990) 14 Fam LR 801; (1991) FLC ¶92-192 …. 13.21, 13.24, 14.59 Gosper & Gosper (1987) 11 Fam LR 601; FLC ¶91-818 …. 14.51 Gotch v Gotch [2009] FamCAFC 3 …. 8.108 Goudge & Goudge (1984) 9 Fam LR 500; FLC ¶91-534 …. 9.78 Gough & Kaur [2012] FamCA 79 …. 7.52 Gould, Marriage of (1993) 17 Fam LR 156; FLC ¶92-434 …. 4.47 Gould, Marriage of (1995) 20 Fam LR 1; (1996) FLC ¶92-657 …. 14.7, 14.23, 14.48 Gould v Brown (1998) 193 CLR 346 …. 4.99, 4.101, 4.102 Gould & Gould; Swire Investments Ltd (1993) 17 Fam LR 156; FLC ¶92-434 …. 15.30, 15.32 Grabar & Grabar (1976) 2 Fam LR 11,581 …. 10.31 Graft v Mccormick [2014] FamCAFC 28 …. 2.27 Graham & Kovacs (No 4) [2015] FamCA 1073 …. 14.7 Grainger & Bloomfield [2015] FamCAFC 221 …. 15.50, 15.66 Grattan & Grattan (No 6) [2014] FamCA 1118 …. 15.15 Gravis v Major [2010] FamCAFC 239 …. 8.136 Grey v Pearson (1857) 10 ER 1216 …. 2.46 Graziano & Daniels, Marriage of (1991) 14 Fam LR 697; FLC ¶92-212 …. 8.149, 8.155 Green v Lord Penzance (1881) 6 App Cas 657 …. 4.23 Green-Wilson & Bishop [2014] FamCA 1031 …. 7.8, 7.49, 7.52, 7.54, 8.44, 8.45 Greer & Mackintosh [2013] FamCAFC 16 …. 14.17 Gregory & Gregory [2014] FCCA 106 …. 15.50 Greval & Greval (1990) 13 Fam LR 829; FLC ¶92-132 …. 15.27 Gronow v Gronow (1979) 144 CLR 513 …. 9.12, 9.24 Groth & Banks (2013) 49 Fam LR 510; [2013] FamCA 430 …. 7.23, 7.54 Gsponer v Johnstone (1988) 12 Fam LR 755; (1989) FLC ¶92-001 …. 8.155, 8.157 Guirguis v Guirguis (1997) FLC ¶92-726 …. 15.61 Guthrie & Guthrie (1995) 19 Fam LR 781 …. 14.59 Guthrie & Rushton [2009] FamCA 1144 …. 15.8 GWW & CMW, Re (1997) 21 Fam LR 612; FLC ¶92-748 …. 8.124 Gyselman, Marriage of (1991) 103 FLR 156; 15 Fam LR 219; (1992) FLC ¶92-279; [1991] FamCA 93 …. 11.29, 11.75, 11.76, 11.78, 11.79, 11.80, 11.84

H H, Marriage of (1981) 7 Fam LR 451; FLC ¶91-083 …. 11.28, 11.29 H, Marriage of (2003) 30 Fam LR 264; FLC ¶93-162 …. 9.77 H (an infant), Re [1964–65] NSWR 2004 …. 5.39 H, AE (No 2), Re [2012] SASC 177 …. 7.30 H v H [1954] P 258 …. 6.29 — v R [2006] FamCA 878 …. 9.66 H & C [2003] FMCAfam 329 …. 6.103 H & H (1994) 19 Fam LR 165; (1995) FLC ¶92-599 …. 9.54 H & P [2011] WASCA 78 …. 6.119 Habib & Habib (1988) 12 Fam LR 127; FLC ¶91-931 …. 11.14 Hack & Hack (1977) 6 Fam LR 425 …. 14.37 Hadjuk & Hadjuk (1993) FLC ¶92-383 …. 15.31 Hagan & Gerald [2013] FamCA 714 …. 13.33 Hagedorn, Marriage of (1988) 12 Fam LR 569; FLC ¶91-965 …. 11.12, 11.13 Halabi v Artillaga (1993) 17 Fam LR 675; (1994) FLC ¶92-470 …. 15.31, 15.33, 15.34 Halifax & Fabian [2010] FamCA 1212 …. 9.62 Hall, Marriage of (1979) 5 Fam LR 609; FLC ¶90-713 …. 8.90, 8.91 Hall, Marriage of (1979) 5 Fam LR 411; FLC ¶90-679 …. 8.59 Hall & Rushton (1991) 14 Fam LR 907; FLC ¶92-249 …. 11.80 Halston v Halston [2013] FMCAfam 16 …. 9.107 Hamblin v Dahl (2010) 239 FLR 111; [2010] FMCAfam 514 …. 5.97, 5.114 Hamilton & Nowak (1988) FLC ¶91-981 …. 11.17 Hamilton & Thomas [2008] FamCAFC 8 …. 14.45 Hamish & Brighton [2014] FamCAFC 242 …. 9.21, 9.23 Hankinson & De Vries [2015] FamCA 833 …. 14.60 Hannah & Hannah; Tozer & Tozer (1989) 13 Fam LR 531; FLC ¶95-052 …. 15.70 Haque v Haque (No 1) (1962) 108 CLR 230 …. 5.6 Harding & Watson [2014] FamCAFC 188 …. 8.108 Harnett v Harnett [1954] VLR 533 …. 9.11 Harricks v Harricks [2014] FCCA 2724 …. 2.62 Harridge v Harridge [2010] FamCA 445 …. 2.44 Harris, Marriage of (1977) FLC ¶90-276 …. 8.90 Harris, Marriage of (1991) 15 Fam LR 26; FLC ¶92-254 …. 13.24, 14.21, 14.45 Harris v Caladine (1991) 172 CLR 84 …. 15.38, 15.39 — v Harris (2010) 245 FLR 172; FLC ¶93-454 …. 8.150 Harris & Hadfield [2014] FamCAFC 41 …. 8.69 Harrison & Harrison (1996) 20 Fam LR 322; FLC ¶92-682 …. 13.21, 14.21

Harrison & Woollard (1995) 18 Fam LR 788; FLC ¶92-598 …. 8.34, 9.43 Hartnett v Baker (1995) 19 Fam LR 584; FLC ¶92-620 …. 11.86 Hashmi v Hashmi [1972] Fam 36 …. 5.6 Hauff & Hauff (1986) FLC ¶91-747 …. 15.4 Hay & Hay [2014] FCCA 775 …. 15.49 Hayman, Marriage of (1976) 2 Fam LR 11,558; FLC ¶90-140 …. 8.105, 9.53 Hayne & Hayne (1994) FLC ¶92-512 …. 11.4 Hayson & Hayson (1987) 11 Fam LR 593; FLC ¶91-819 …. 10.19 Hazan & Elias (2011) 45 Fam LR 475 …. 2.46 Heard & De Laine; Crown Solicitor for the State of South Australia (Intervener) (1996) 20 Fam LR 315; FLC ¶92-675 …. 8.76 Hearn v Woolcott [2014] FamCA 42 …. 15.38 Hearne & Hearne [2015] FamCAFC 178 …. 13.37, 14.42 Heath & Heath; Westpac Banking Corp (1983) 9 Fam LR 97; FLC ¶91-362 …. 15.31 Heath & Heath; Westpac Banking Corp (No 2) (1984) 9 Fam LR 642; FLC ¶91-517 …. 15.31, 15.33 Heaton & Heaton [2012] FamCAFC 139 …. 9.121 Heeks & Heeks (1980) FLC ¶90-804 …. 10.26 Heidt, Marriage of (1976) 1 Fam LR 11,576; FLC ¶90-077 …. 9.33, 9.51, 9.54 Henderson & Henderson (1948) 76 CLR 529 …. 1.30 Henderson & Henderson (1989) 13 Fam LR 40; FLC ¶92-011 …. 11.21, 11.28 Henry, Re; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 …. 3.44 Henry & Henry (1995) 20 Fam LR 171; (1996) FLC ¶92-685 …. 12.39 Hewer v Bryant [1970] 1 QB 357 …. 8.29 Hibberson v George (1989) 12 Fam LR 725; DFC ¶95-064 …. 6.118, 6.120 Hickey & Hickey (2003) 30 Fam LR 355; FLC ¶93-143 …. 13.9, 13.10, 13.14, 13.16, 13.18, 13.36, 14.56, 14.68, 15.4, 15.10, 15.71 Hill, Marriage of (2005) 32 Fam LR 552; FLC ¶93-209 …. 14.28, 14.34 Hill v Hill [1959] 1 All ER 281 …. 6.45, 6.46 Hine v Hine [1962] 3 All ER 345 …. 12.13 Hirst & Rosen, Marriage of (1982) 8 Fam LR 251; FLC ¶91-230 …. 10.26, 14.18 Hiu v Ling [2010] FamCA 743 …. 5.83, 6.18 Hodak & Hodak v Newman (1993) 17 Fam LR 1; FLC ¶92-421 …. 9.59 Hodges, Marriage of (1977) 2 Fam LR 11,524; FLC ¶90-203 …. 6.83 Hoffman & Hoffman (2014) 51 Fam LR 568; FLC ¶93-591; [2014] FamCAFC 92 …. 8.106, 9.24, 11.76, 12.23, 14.2, 14.4, 14.5, 14.6, 14.27, 14.30, 14.31 Hogue, Marriage of (1977) 3 Fam LR 11,290; FLC ¶90-259 …. 8.90 Holden & Wolff (2014) 52 Fam LR 60; FLC ¶93-621 …. 12.44

Holmes, Marriage of (1988) 12 Fam LR 103; FLC ¶91-918 …. 9.117 Homsy, Yassa and the Public Trustee (1993) 17 Fam LR 299; (1994) FLC ¶92-442 …. 14.44 Hooshmand & Ghasmezadegan (2000) FLC ¶93-044 …. 6.108 Hope, Marriage of (1977) 3 Fam LN 6; FLC ¶90-294 …. 10.26, 10.27 Hopes v Hopes [1949] P 227 …. 6.74, 6.77 Horman, Marriage of (1976) 5 Fam LR 796; FLC ¶90-024 …. 8.59, 9.67, 9.68 Hort v Verran (2009) FLC ¶93-418 …. 9.83 Horton, Marriage of (1983) 9 Fam LR 924; FLC ¶91-368 …. 6.103 Hosking, Marriage of (1994) 121 FLR 196; 18 Fam LR 581; FLC ¶92-579 …. 6.37, 6.38 Houghton v Arms (2006) 225 CLR 553 …. 4.87 Houlihan, Marriage of (1991) 14 Fam LR 910; FLC ¶92-248 …. 11.80 Hoult v Hoult (2013) 50 Fam LR 260; FLC ¶93-546 …. 15.56, 15.57, 15.58, 15.59 House v The King (1936) 55 CLR 499; [1936] HCA 40 …. 4.122, 4.124, 4.125, 14.3 Hubert v Juntasa [2011] FamCA 504 …. 7.51, 7.52 Hudson & Hudson (1986) 11 Fam LR 189 …. 15.31 Hugh v Sawer [2011] FamCA 48 …. 8.148 Hughes & Hughes (1984) 9 Fam LR 610; FLC ¶91-549 …. 15.15 Hughes-Kempe & Kempe & Bocampe Pty Ltd (2005) FLC ¶93-237 …. 15.23 Hunt, Marriage of (1977) 3 Fam LR 11,144; FLC ¶90-219 …. 6.83 Hunt v Hunt (2006) 208 FLR 1; 36 Fam LR 64; [2006] FamCA 167 …. 4.47, 4.87, 15.24, 15.30 Hussein (otherwise Blitz) v Hussein [1938] P 159 …. 6.28 Hutchens & Franz [2009] FamCA 414 …. 7.46 Hutchings v Clarke (1993) 16 Fam LR 452; FLC ¶92-373 …. 8.66 Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130; [1861–73] All ER Rep 175 …. 1.52, 4.3, 4.11, 5.4, 5.6, 5.56, 6.43, 6.111

I I & I (1995) 19 Fam LR 147; FLC ¶92-604 …. 9.117 Ibbotson & Wincen (1994) 18 Fam LR 164; FLC ¶92-406 …. 8.141 Inaya (Special Medical Procedure), Re (2007) 38 Fam LR 546 …. 8.124 Indyka v Indyka [1969] 1 AC 33 …. 4.108, 12.38 Infant, Re an (1963) 6 FLR 12 …. 5.48 Infant, Re an [1970] WAR 139 …. 5.48 Irish v Michelle [2009] FamCA 66 …. 1.91 Irvin & Carr (2007) FLC ¶93-322 …. 8.130 Irving & Tatupa [2013] FamCA 358 …. 8.48

Isdale & Dore (1997) 22 Fam LR 560; (1998) FLC ¶92-798 …. 11.4 Ivanfy & Ivanfy (1978) 4 Fam LR 452; FLC ¶90-512 …. 15.31

J J v C [1970] AC 668 …. 9.58 — v D (2000) 27 Fam LR 455; FLC ¶93-062 …. 7.12 — v Leishke [1987] ALJR 143 …. 8.31 — v W (1999) 25 Fam LR 299; FLC ¶92-858 …. 9.70 J & Director-General, Department of Community Services, Re [2003] FamCA 929 …. 8.153 Jacks v Samson (2008) 221 FLR 307; FLC ¶93-387 …. 8.125, 9.94 Jackson & Jackson (1988) FLC ¶91-904 …. 14.11 Jackson & Macek [2015] FamCAFC 114 …. 9.20, 9.70 Jacobs v Davis [1917] 2 KB 532 …. 5.20 Jacobs & Kirby [2014] FamCA 231 …. 8.117 Jacobsen & Jacobsen (1987) 11 Fam LR 990 …. 10.26 Jacobson & Jacobson (1989) FLC ¶92-003 …. 14.48 Jacombe v Jacombe (1961) 105 CLR 355 …. 5.75 Jaeger, Marriage of (1994) 18 Fam LR 126; FLC ¶92-492 …. 1.74, 9.34 Jamie, Re (2012) FLC ¶93-497 …. 8.124 Jamie, Re [2013] FamCAFC 110 …. 3.6, 8.4, 8.33, 8.34, 8.124 Jamie (special medical procedure), Re [2011] FamCA 248 …. 8.124 Jamine v Jamine (No 2) [2010] FamCAFC 133 …. 6.91 Jane, Re (1988) 12 Fam LR 662; FLC ¶92-007 …. 8.118 Jarman & Lloyd (1982) 8 Fam LR 878 …. 9.68, 9.69 JE & BG (1994) 18 Fam LR 225; FLC ¶92-516 …. 1.74 Jeeves & Jeeves [2010] FamCA 488 …. 15.50 JEL v DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075 …. 13.14, 14.24, 14.25, 14.27, 14.28, 14.30, 14.58 Jenner & Jenner (1983) 9 Fam LR 549; (1984) FLC ¶91-544 …. 15.4 Jennings, Marriage of (1997) 139 FLR 273; 22 Fam LR 510; FLC ¶92-773 …. 6.71 Jetts v Maker [2010] FamCAFC 55 …. 8.129, 8.141 JFL & TP (1999) FLC ¶92-870 …. 7.12 JG & BG, Marriage of (1994) 18 Fam LR 255; FLC ¶92-515 …. 9.35 JJT, Re; Ex parte Victoria Legal Aid (1998) 195 CLR 155; 155 ALR 251; 23 Fam LR 1; FLC ¶92-812 …. 8.76 JJT v CTT (2004) FLC ¶93-198 …. 8.44 JLM v Director-General, New South Wales Department of Community Services (2001) 27 Fam LR 569 …. 8.157

Joannou, Marriage of (1985) FLC ¶91-642 …. 9.42, 9.44 Johnson v Chompunut [2011] FamCA 505 …. 7.51, 7.52 — v Johnson [1964] VR 604 …. 6.78 Johnson & Page (2007) FLC ¶93-344 …. 9.107 Jollie & Dysart [2014] FamCAFC 149 …. 8.45, 8.148, 9.5 Jolly & Jolly (1978) FLC ¶90-458 …. 3.15 Jonah v White (2011) 45 Fam LR 460; [2011] FamCA 221 …. 5.98, 5.100, 5.101, 5.104, 5.107, 5.108, 5.113 Jonah v White (2012) 48 Fam LR 562; FLC ¶93-522 …. 5.101, 5.104, 5.107, 6.119 Jones v Grech (2001) 27 Fam LR 711 …. 5.95 — v Maynard [1951] Ch 572 …. 12.13 Judiciary and Navigation Acts, Re (1921) 29 CLR 257 …. 4.23 Jurchenko & Foster [2014] FamCAFC 127 …. 9.120, 9.121 Jurd v Public Trustee [2001] NSWSC 632 …. 10.54 Jurss & Jurss (1976) 1 Fam LR 11,203; FLC ¶90-041 …. 8.58

K K (A Minor: Custody), Re (1990) 2 FLR 64 …. 8.98 K (an infant), Re [1964] ALR 363 …. 5.38 K, Estate of the late (1996) 5 Tas R 365 …. 7.29 K, Re (1994) 17 Fam LR 537; FLC ¶92-461 …. 8.75, 8.78 K v Cullen (1994) 18 Fam LR 636 …. 5.36, 5.41, 5.43 K & K (1992) 15 Fam LR 285 …. 9.104 Kades v Kades (1961) 35 ALJR 251 …. 9.10 Kajewski, Marriage of (1978) 31 FLR 500n; 4 Fam LN N42; FLC ¶90-472 …. 10.30, 10.34 Kaljo & Kaljo (1978) 4 Fam LR 190; FLC ¶90-445 …. 10.37 Kane & Kane [2011] FamCA 480 …. 14.29 Kane & Kane (2013) 50 Fam LR 489; FLC ¶93-569 …. 14.8, 14.29 Kapadia, Marriage of (1991) 14 Fam LR 883; FLC ¶92-245 …. 5.80, 6.108 Katzer v Katzer [2011] FMCAfam 85 …. 2.28 Kauiers & Kauiers (1987) 11 Fam LR 41; (1986) FLC ¶91-708 …. 10.34 Kaule & Brown [2015] FamCA 480 …. 13.35, 13.40 Kavan & Mallery [2013] FCCA 210 …. 13.21 Kavanagh v Metzger [2010] FamCAFC 201 …. 14.60 Kay v Jasper [2007] FamCA 1646 …. 9.60 KD (a Minor) (Ward: Termination of Access), Re [1988] 1 AC 806 …. 9.88 Keach & Keach (2007) FLC ¶93-353 …. 8.100 Kearney & Dillon [2013] FamCA 630 …. 11.76

Keaton v Aldridge (2009) 223 FLR 158; [2009] FMCAfam 92 …. 5.93, 5.103, 5.105, 5.107, 5.108, 5.110, 5.111, 5.112, 5.116, 6.115, 7.19 Keaton & Keaton (1986) FLC ¶91-745 …. 9.96 Kecskemethy v Magyar [1962] NSWR 547 …. 6.28 Keehan & Keehan [2015] FamCAFC 122 …. 14.65 Kelada, Marriage of (1984) 9 Fam LR 576; FLC ¶91-503 …. 6.89 Kelly v Temple [2011] FMCAfam 683 …. 6.121 Kelly (orse Hyams) v Kelly (1932) 49 TLR 99 …. 6.44 Kelly & Kelly (No 2) (1981) 7 Fam LR 762; FLC ¶91-108 …. 13.22, 14.18 Keltie v Keltie & Bradford (2002) 29 Fam LR 114; FLC ¶93-106 …. 11.7, 11.26, 11.33, 11.38 Kemsley, Marriage of (1984) 10 Fam LR 125; FLC ¶91-567 …. 3.14, 3.18 Kennon, Marriage of (1997) 22 Fam LR 1; FLC ¶92-757 …. 1.79, 4.98, 10.45, 14.24, 14.34, 14.41, 14.42, 14.43, 14.68 Kennon v Spry (2008) 238 CLR 366; 251 ALR 257; 40 Fam LR 1; FLC ¶93-388 …. 13.25, 15.17, 15.27 Kent & Pigot, Marriage of (1982) 8 Fam LR 537 …. 4.51 Kessey, Marriage of (1994) 18 Fam LR 149; FLC ¶92-495 …. 14.23, 14.51 Kevin: Validity of Marriage of Transsexual, Re (2001) 28 Fam LR 158; FLC ¶93-087 …. 5.13 Kevin (Validity of Marriage of Transsexual), Re (2003) 172 FLR 300; 30 Fam LR 1; FLC ¶93-127 …. 6.43, 6.108 Keyssner & Keyssner (1976) 1 Fam LR 11,562; FLC ¶90-075 …. 6.87 Keyush v Dhupam [2011] FamCA 259 …. 9.22 Khaddour & Jaouhara [2004] FMCAfam 287 …. 13.5 Khan v Khan [1963] VR 203 …. 5.6, 6.111 Kiesinger & Paget (2008) 216 FLR 445; [2008] FamCAFC 23 …. 10.4, 10.22, 10.26 Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431; FLC ¶93-373 …. 8.154, 8.156, 8.157 King v Finneran (2001) FLC ¶93-079 …. 8.107 — v Jones (1972) 128 CLR 221 …. 4.22 — v Phanphumong [2010] FamCA 1206 …. 8.48 King & Aames [2013] FamCA 263 …. 8.132 Kings & Murray [2009] FamCA 565 …. 9.106 Kirby & Watson (1977) 3 Fam LR 11,318; FLC ¶90-261 …. 5.75, 5.76 Kitson v Calise [2013] FCCA 1931 …. 2.61 Klintock v Ferder (2010) 43 Fam LR 135; [2010] FamCA 162 …. 4.88, 5.93 KN & Child Representatives v NN & JN (2006) 35 Fam LR 518; FLC ¶93-284 …. 9.59 KN & SD & Department of Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 394; FLC ¶93-148 …. 3.17

Knibbs & Knibbs [2009] FamCA 840 …. 8.86 Knightley v Brandon (2013) 272 FLR 332; [2013] FMCAfam 148 …. 9.107 Koch & Koch (1977) FLC ¶90-312 …. 12.42 Koldsjor v Addington [2009] FamCAFC 21 …. 9.128 Korsky & Bright (No 2) (2007) 38 Fam LR 106; FLC ¶93-352; [2007] FamCA 1512 …. 15.70 Kostres & Kostres (2009) 42 Fam LR 336; FLC ¶93-420 …. 15.49 Kotsis v Kotsis (1970) 122 CLR 69 …. 4.33 Koufalakis v Koufalakis (1963) 4 FLR 310 …. 6.66 Kouper & Kouper (No 3) [2009] FamCA 1080 …. 13.28 Kousal & Tack (2002) 30 Fam LR 581; (2003) FLC ¶93-134 …. 5.76 Koutalis & Bartlett (1994) 17 Fam LR 722; FLC ¶92-478 …. 9.109, 9.110 Kowaliw, Marriage of (1981) FLC ¶91-092 …. 13.28, 13.32, 14.34, 14.35, 14.36 Kowalski, Marriage of (1992) 16 Fam LR 235; (1993) FLC ¶92-343 …. 12.33 Krebs, Marriage of (1976) 2 Fam LR 11,341; FLC ¶90-117 …. 6.103 Kreet v Sampir (2011) 252 FLR 234; 44 Fam LR 405 …. 6.30, 6.34 Kress, Marriage of (1976) 2 Fam LR 11,330; FLC ¶90-126 …. 8.59, 9.12, 9.66 Krotofil, Marriage of (1980) FLC ¶90-909 …. 12.42 Kuebler, Marriage of (1978) 4 Fam LN 4; FLC ¶90-434 …. 8.144 Kwon & Kwon (1993) 16 Fam LR 574; FLC ¶92-379 …. 15.31

L L, Marriage of (1984) 9 Fam LR 1033; FLC ¶91-563 …. 10.31 L, Marriage of (1991) 15 Fam LR 157; (1992) FLC ¶92-274 …. 8.105 L v T (1999) 25 Fam LR 590; FLC ¶92-875; [1999] FamCA 1699 …. 8.45, 8.125 L & L (1983) FLC ¶91-353 …. 9.69 L & M; Director General, Department of Family Services and Aboriginal and Islander Affairs (1993) 17 Fam LR 357; (1994) FLC ¶92-449 …. 8.120 La Rocca, Marriage of (1991) 14 Fam LR 715; FLC ¶92-222 …. 15.70, 15.72 Lalor, Marriage of (1989) 14 Fam LR 282; (1990) FLC ¶92-164 …. 14.21, 14.48, 14.59 Lanceley, Marriage of (1994) 18 Fam LR 71; FLC ¶92-491 …. 13.11 Lane & Lane (1976) 1 Fam LR 11,385; FLC ¶90-055 …. 6.66, 6.70 Langmeil & Grange [2013] FamCAFC 31 …. 3.6 Lansell v Lansell (1964) 110 CLR 353 …. 4.22, 4.25, 4.26, 4.29, 4.37, 12.16, 12.37 Lao & Lao [2014] FamCA 275 …. 11.76 Lawler & Lawler (1989) 12 Fam LR 319; FLC ¶91-927 …. 10.36, 14.20, 14.45, 14.59, 14.66 Law-Smith & Seinor (1989) 13 Fam LR 397; FLC ¶92-050 …. 15.15 Layton & Layton [2014] FamCAFC 126 …. 13.32

LDME v JMA (SSAT Appeal) (2007) 38 Fam LR 132; FLC ¶98-034 …. 11.74 Le Mesurier v Connor (1929) 42 CLR 481 …. 4.33 — v Le Mesurier [1895] AC 517 …. 4.105 Lederer v Hunt (S109/2006) …. 4.47, 15.24, 15.30 Lee & Hutton (2013) 50 Fam LR 322; [2013] FamCA 745 …. 8.116, 12.44 Lee Steere, Marriage of (1985) 10 Fam LR 431; FLC ¶91-626 …. 13.14, 13.19, 14.57 Leibinger & Leibinger (No 1) (1985) 11 Fam LR 33; (1985) FLC ¶91-727 …. 12.33 Leibinger & Leibinger (No 2) (1986) FLC ¶91-775 …. 3.9 LeMay v Clark (2006) DFC ¶95-327; [2005] FCWA 23 …. 5.97, 5.114, 6.122 Lenehan & Lenehan (1987) 11 Fam LR 615; FLC ¶91-814 …. 14.16 Lengyel v Rasad (1989) 99 FLR 130; 13 Fam LR 648; FLC ¶92-112 …. 6.4 Leonards v Leonards [1961] VR 334 …. 6.28, 6.106 Lesley (Special Medical Procedures), Re [2008] FamCA 1226 …. 8.124 Lester & Lester (2014) FamCAFC 209 …. 14.58, 14.64, 14.65 Lester v Lester (2007) 36 Fam LR 488 …. 5.74, 6.108 Levine v Levine [2011] FMCAfam 821 …. 11.66 Liesert v Nutsch (1996) FLC ¶92-665 …. 11.85 Linch & Linch [2014] FamCACF 69 …. 14.47, 15.11 Linder & Linder [2013] FamCA 988 …. 14.13 Lindsey, Marriage of (1995) 19 Fam LR 649; FLC ¶92-638 …. 3.20 Line, Marriage of (1997) 21 Fam LR 259; FLC ¶92-729 …. 8.144 Little & Little (1990) 14 Fam LR 118; FLC ¶92-147 …. 14.67 LK v Director-General, Department of Community Services (2009) 237 CLR 582 …. 8.154 Lloyd v Lloyd and Child Representative (2000) FLC ¶93-045 …. 8.86 Logan & Logan (2013) FLC ¶93-555; [2013] FamCAFC 151 …. 15.58 Lonard & Lonard (1976) 2 Fam LR 11, 116 …. 9.63 Loogman & Loogman (1990) 14 Fam LR 320; FLC ¶92-158 …. 11.89 Lorreck & Watts [2012] FamCAFC 75 …. 9.122 Lotta & Lotta [2015] FamCA 360 …. 15.58 Lotta & Lotta (No 2) [2015] FamCA 551 …. 10.39 Love v Henderson (1996) 20 Fam LR 128; FLC ¶92-653 …. 11.4 Love & Love (1989) 17 Fam LR 263; (1994) FLC ¶92-441 …. 12.36 Love & Lundy [2015] FCCA 2382 …. 9.62 Lovell v Lovell (1950) 81 CLR 513 …. 4.125, 9.10 Lovine & Connor (2012) FLC ¶93-515; [2012] FamCAFC 168 …. 14.4, 14.5, 14.8 Lowe & Harrington (1997) 21 Fam LR 583; FLC ¶92-747 …. 15.70 LSH, Re; Ex parte RTF (1987) 164 CLR 91 …. 4.48, 4.49, 4.51 Luckie, Marriage of (1989) 13 Fam LR 223; FLC ¶92-036 …. 11.14

Lusito v Lusito (2011) 247 FLR 473 …. 7.19 Lynette, Re (1999) 25 Fam LR 352; FLC ¶92-863 …. 9.62, 9.73 Lyris & Hatziantoniou, Marriage of (1998) 24 Fam LR 391; (1999) FLC ¶92-840 …. 8.76

M M (Contact: Violent Parent), Re [1999] 2 FLR 321 …. 9.38 M v F (2006) 36 Fam LR 519 …. 9.100, 9.101 — v M (1988) 12 Fam LR 606; FLC ¶91-979 …. 9.31, 9.101, 9.103, 9.104, 9.106, 9.107, 9.111 — v — (2000) FLC ¶93-006 …. 9.36 — v — (2006) 37 Fam LR 150; FLC ¶93-281 …. 15.11 — v S (2006) 37 Fam LR 32; (2007) FLC ¶93-313; [2006] FamCA 1408 …. 9.26, 9.27, 9.116, 9.121 M & H (1996) FLC ¶92-695 …. 9.105 — & L (Aboriginal culture) (2007) 37 Fam LR 317; FLC ¶93-320 …. 9.36, 9.81 M & M (1988) 166 CLR 69 …. 3.45 MacKenzie & MacKenzie (1978) 4 Fam LR 374; FLC ¶90-496 …. 13.2, 13.4 Macks, Re; Ex parte Saint (2000) 204 CLR 158 …. 4.104 Macris & Galanis [2015] FamCAFC 234 …. 14.47 Maday, Marriage of (1985) 10 Fam LR 357; FLC ¶91-636 …. 9.47 Madin & Palis (2015) FLC ¶93-647; [2015] FamCAFC 65 …. 6.115, 13.6 Magill v Magill (2005) 33 Fam LR 193; Aust Torts Reports 81-783 …. 11.67 — v — (2006) 226 CLR 551; 231 ALR 277; 36 Fam LR 1 …. 4.69, 6.37, 11.66, 11.67 Mahon & Mahon (1982) FLC ¶91-242 …. 14.13 Mahoney & McKenzie (1993) 16 Fam LR 803; FLC ¶92-408 …. 9.130 Main v Main (1949) 78 CLR 636 …. 6.61, 6.76 Mains & Redden [2011] FamCAFC 184 …. 8.124 Malcolm v Monroe [2011] FamCAFC 16 …. 9.121 Malcolm & Malcolm (1977) 28 FLR 125; FLC ¶90-220 …. 10.19 Maldera v Orbel [2014] FamCAFC 135 …. 8.75, 8.91, 8.132, 9.26 Mallet v Mallet (1984) 156 CLR 605; 9 Fam LR 449 …. 4.125, 12.5, 14.18, 14.19, 14.20, 14.21, 14.22, 14.25, 14.30, 14.32, 14.60, 14.68 Manby v Scott [1558–1774] All ER Rep 274; (1663) 1 Mod Rep 124; 83 ER 1065 …. 10.6 Manning, Marriage of (1977) 29 FLR 418; 3 Fam LR 11,518; FLC ¶90-298 …. 6.19, 6.20 Manning & Manning (No 2) (1978) 32 FLR 481; 4 Fam LR 173; FLC ¶90-456 …. 6.20 Mansfield & Mansfield (1991) 14 Fam LR 531; FLC ¶92-206 …. 11.81 Mapstone & Mapstone (1979) 5 Fam LR 205; FLC ¶90-681 …. 10.27 Marion, Re (1990) 14 Fam LR 427; (1991) FLC ¶92-193 …. 4.57, 4.58, 4.59, 4.61, 4.67

Marion (No 2), Re (1993) 17 Fam LR 336; (1994) FLC ¶92-448 …. 8.120, 8.123 Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] AC 524 …. 15.72 Mark (An application relating to parental responsibilities), Re (2002) 28 Fam LR 579; FLC ¶93-096 …. 7.20 Mark (An application relating to parental responsibilities), Re (2003) 31 Fam LR 162; FLC ¶93-173 …. 7.8, 7.20, 7.23, 7.46, 7.50, 11.65 Marker v Marker [1998] FamCA 42 …. 13.27 Marlowe-Dawson & Dawson (No 2) [2014] FamCA 599 …. 13.21 Marras & Marras (1985) 10 Fam LR 47; (1985) FLC ¶91-635 …. 11.14 Marsden v Winch (2009) 42 Fam LR 1 …. 8.108 — v — (No 3) [2007] FamCA 1364 …. 9.26 Marsh, Marriage of (1993) 17 Fam LR 289; (1994) FLC ¶92-443 …. 14.44 Marsh & Marsh (2014) 51 Fam LR 540; FLC ¶93-576 …. 14.10, 14.49, 14.59, 14.60 Martin v Martin [1941] N I 1 …. 5.37 — v — (1959) 110 CLR 297 …. 12.15 Martin & Newton [2011] FamCAFC 233 …. 13.15 Martiniello & Martiniello (1981) 7 Fam LR 299; FLC ¶91-050 …. 15.15 Marvel v Marvel (2010) 43 Fam LR 348 …. 8.62, 9.7 Marven v Marven (1919) 36 TLR 106 …. 1.26 Mason & Mason (1993) 17 Fam LR 269; (1994) FLC ¶92-446 …. 12.36 Mason & Mason [2013] FamCA 424 …. 7.53, 7.54 Masoud & Masoud [2013] FamCA 763 …. 11.76 Mathieson, Marriage of (1980) 6 Fam LR 116; (1977) FLC ¶90-230 …. 8.59, 9.12, 9.51, 9.54 Mathieson & Hamilton [2006] FMCAfam 238 …. 11.17 Mauger v Mauger (1966) 7 FLR 484 …. 9.74 — v — (No 1) (1966) 10 FLR 285 …. 9.74 Maunder v Maunder (1999) 25 Fam LR 579; FLC ¶92-871 …. 6.100 Maurer v Van Laren [2012] FamCA 8 …. 1.91 Maurice v Barry (2010) 44 Fam LR 62; [2010] FamCA 687 …. 7.11, 7.19 MAV v NTV [2005] FMCAfam 261 …. 11.80 Maxwell & Maxwell (1976) 1 Fam LN No 27 …. 9.13 Maxwell & Miltiadis (2015) FamCAFC 40; FLC ¶93-644 …. 15.39 Mayne & Mayne (2011) 46 Fam LR 197; FLC ¶93-479 …. 13.28 Mazorski v Albright (2007) 37 Fam LR 518 …. 9.27, 9.82, 9.121 Mazur, Marriage of (1976) 2 Fam LR 11,311; FLC ¶90-132 …. 9.95 Mazur, Marriage of (1991) 15 Fam LR 574; (1992) FLC ¶92-305 …. 9.96 Mazurka v Mazurka [2011] FamCAFC 68 …. 9.20 McBain, Re; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188

ALR 1 …. 7.33 McBain v Victoria (2000) 99 FCR 116 …. 7.33 McCall v Clark (2009) 41 Fam LR 483; FLC ¶93-405; [2009] FamCAFC 92 …. 8.75, 9.16, 9.21, 9.27 — v — (No 3) [2010] FMCAfam 1443 …. 9.16 McCall & McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) (1995) FLC ¶92-551 …. 8.153 McCall & State Central Authority; Attorney-General (Cth) (Intervenor) [1994] FamCA 120 …. 8.159 McClintock v Levier (2009) FLC ¶93-401; [2009] FamCAFC 62 …. 8.136, 8.138 McCoy v Wessex (2007) 38 Fam LR 513 …. 9.111 McDonald v Director-General, Department of Community Services, New South Wales (2006) FLC ¶93-297 …. 8.157 McDougall, Marriage of (1976) 1 Fam LR 11,581; FLC ¶90-076 …. 14.11 McGlennan v Don [2011] FamCA 204 …. 2.28 McGregor v McGregor [2012] FamCAFC 69 …. 9.20 McIntyre (1994) FLC ¶92-468 …. 15.70 McK & K v O (2001) FLC ¶93-089 …. 7.10, 7.11, 7.14 McKay, Marriage of (1984) 9 Fam LR 850; FLC ¶91-573 …. 4.87 McKee, Marriage of (1977) FLC ¶90-258 …. 8.90 McL, Marriage of (1989) 15 Fam LR 7; (1991) FLC ¶92-238 …. 9.78 McLay, In the Matter of (1996) 20 Fam LR 239; FLC ¶92-667 …. 14.16, 14.25, 14.27, 14.28 McLory v McLory [2010] FamCA 305 …. 8.134 McMahon & McMahon (1995) 19 Fam LR 99; FLC ¶92-606 …. 14.16 McMaster v Wyhler [2013] FamCA 989 …. 5.107, 5.108 McMillan v Jackson (1995) 19 Fam LR 183; FLC ¶92-610 …. 9.14 McNeill v McNeill’s Transport Pty Ltd (1985) 81 FLR 26 …. 12.40 McQuinn & Shure [2011] FamCA 139 …. 7.49 McRostie v McRostie [1955] NZLR 631 …. 6.66 Mead & Mead (1983) 9 Fam LR 193; FLC ¶91-354 …. 14.35, 14.36 Mead & Mead (2006) FLC ¶93-267 …. 3.20 Mead & Mead (2007) 36 Fam LR 806; FLC ¶93-327 …. 3.20 Mears v Mears (2012) FLC ¶93-503 …. 5.56 Meddow & Estate of the Late Ms Meddow [2015] FamCA 1182 …. 15.8 Mee & Ferguson (1986) 10 Fam LR 971; FLC ¶91-716 …. 11.3, 11.9, 11.11 Mehta v Mehta [1945] 2 All ER 690 …. 6.44 Mellick & Mellick [2014] FamCAFC 236 …. 8.26, 9.7 Menz & Menz (1980) FLC ¶90-852 …. 15.29, 15.31

Mercer, Marriage of (1976) 1 Fam LR 11,179; FLC ¶90-033 …. 11.21, 11.23, 11.29 Merryman, Marriage of (1994) FLC ¶92-497 …. 3.15, 9.34 MHC & QPO [2005] FamCA 138 …. 10.39 Michael Surrogacy Arrangements, Re (2009) 41 Fam LR 694; [2009] FamCA 691 …. 7.8, 7.46 Miller, Marriage of (1979) 4 Fam LR 34; FLC ¶90-669 …. 10.27 Miller, Marriage of (1983) 9 Fam LR 10; FLC ¶91-328 …. 6.16, 6.94, 6.96, 12.30 Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618; [2006] 3 All ER 1 …. 10.3, 10.18, 10.36, 10.43, 13.2, 14.13 Miller & Harrington (2008) 39 Fam LR 654; FLC ¶93-383 …. 8.107 Mills v Harris [1963] WAR 145 …. 5.18 — v Watson (2008) 39 Fam LR 52 …. 9.21, 9.38, 9.39, 9.121 Mims & Green & Green [2008] FamCAFC 13 …. 9.25 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 …. 8.4 — v B (2004) 219 CLR 365; 31 Fam LR 339; FLC ¶93-174 …. 4.65, 4.66, 4.67, 4.68, 8.4, 8.88, 8.124, 8.125 Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 …. 8.4 Mitchell & Mitchell (1995) 19 Fam LR 44; FLC ¶92-601 …. 10.4, 10.22, 10.23, 10.24, 10.26, 10.27, 10.40, 10.45, 11.27 MJH Pty Ltd & Hannes (1990) 14 Fam LR 231 …. 12.40 MM & KF; FM, Re [2012] NSWSC 445 …. 7.44 MNR v MEA [2004] FMCAfam 619 …. 11.85 Moby v Schulter (2010) FLC ¶93-447; [2010] FamCA 748 …. 5.100, 5.101, 5.105, 5.109, 5.110, 5.114, 6.115, 6.119, 6.122, 6.123 Moge v Moge [1992] 3 SCR 813; (1992) 43 RFL (3d) 345 …. 10.24, 12.5 — v Moge; Women’s Legal Education and Action Fund (Intervener) (1993) 99 DLR (4th) 456 …. 10.43, 10.44 Molen, Marriage of (1992) 16 Fam LR 203; FLC ¶92-344 …. 14.13 Molier & Van Wyk (1980) 7 Fam LR 18; FLC ¶90–911 …. 15.72 Money & Money (1994) 17 Fam LR 814; FLC ¶92-485 …. 14.45 Montano v Kinross (2014) FLC ¶93-623; [2014] FamCAFC 231 …. 13.6 Monticelli v McTiernan (1995) 19 Fam LR 108; FLC ¶92-617 …. 8.64 Monticone, Marriage of (1990) 13 Fam LR 592; FLC ¶92-114 …. 15.73 Moore v Moore (1973) 21 FLR 390 …. 6.100 — v Smith (1984) DFC ¶96-148 …. 6.120 Moore & Hendler (1992) 15 Fam LR 770 …. 13.11 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 …. 4.84 Moose & Moose (2008) FLC ¶93-375 …. 8.107, 9.109 Moreno & Moreno [2009] FMCAfam 1109 …. 15.50

Morgan v Miles (2007) 38 Fam LR 275; FLC ¶93-343 …. 8.41, 8.101, 9.121 Morgan & Flanagan [2014] FamCA 348 …. 13.4 Morley v Henshall [2014] FCCA 1993 …. 5.93 Morris v Morris [1972–73] ALR 893 …. 6.78, 6.79 Morrison, Marriage of (1990) 13 Fam LR 822; FLC ¶92-136 …. 11.79 Morrison, Marriage of (1994) 18 Fam LR 519; (1995) FLC ¶92-573 …. 15.70 Morrison, Marriage of (1995) 19 Fam LR 662; (1995) FLC ¶92-639 …. 9.73 Mortimer & Mortimer [2012] FamCA 974 …. 13.4 Mortland v Wheaton (No 2) [2011] FamCA 950 …. 2.28 Moss & Moss [1897] P 263 …. 6.25, 6.35, 6.41 MRR v GR (2010) 240 CLR 461; 42 Fam LR 531 …. 8.63, 9.23, 9.122, 9.123 Mullane & Mullane (1983) 158 CLR 436; 8 Fam LR 777; FLC ¶91-303 …. 15.14 Mullen & De Bry (2006) 36 Fam LR 454; FLC ¶93-293 …. 15.15 Mulvany v Lane (2009) 41 Fam LR 418; FLC ¶93-404; [2009] FamCAFC 76 …. 9.26, 9.27, 9.61 Mulvena v Mulvena (1999) 24 Fam LR 452; FLC ¶98-006 …. 11.78 Murphy v Murphy (1961) 2 FLR 363 …. 6.78 Murray & Tam; Director, Family Services ACT (Intervener) (1993) 16 Fam LR 982; FLC ¶92-416 …. 8.157 MW v Director-General, Dept of Community Services (2008) 244 ALR 205; 82 ALJR 629; 39 Fam LR 1 …. 5.97, 8.153 MW, DD, TA & AB v Royal Women’s Hospital (1997) DFC ¶95-183 …. 7.33

N N, Marriage of (1977) FLC ¶90-208 …. 9.63 N, Marriage of (1981) 7 Fam LR 889; FLC ¶91-111 …. 9.74 N & R (1991) 15 Fam LR 39; FLC ¶92-252 …. 8.105 N & S, Marriage of (1995) 19 Fam LR 837; (1996) FLC ¶92-655 …. 9.89, 9.96, 9.101, 9.105, 9.106, 9.110 Nachimson v Nachimson [1930] P 217 …. 5.6, 5.15 Nada & Nettle [2014] FamCAFC 123 …. 9.21, 9.23 Najjarin & Houlayce, Marriage of (1991) 104 FLR 403; 14 Fam LR 889; FLC ¶92-246 …. 6.36, 6.37, 6.38, 6.44 Nantz & Brettos [2011] FMCAfam 427 …. 12.36 Napier & Hepburn (2006) 36 Fam LR 395; FLC ¶93-303 …. 9.105, 9.106, 9.108 Napthali & Napthali (1988) 13 Fam LR 146; (1989) FLC ¶92-021 …. 10.19, 13.19, 14.12 National Provincial Bank v Ainsworth [1965] AC 1175 …. 12.14 Nawaqaliva & Marshall (2006) FLC ¶93-296 …. 3.3, 9.3 ND v BM (2003) 31 Fam LR 22 …. 7.26, 11.65

Neale & Neale (1991) 14 Fam LR 861; FLC ¶92-242 …. 10.3 Nemeth & Nemeth (1987) FLC ¶91-844 …. 14.45 Neocleous & Neocleous (1993) 16 Fam LR 557; FLC ¶91-377 …. 10.18 Nghiem v Truong [2012] FamCA 210 …. 5.97, 5.99 Ngo v Ngo [2010] FamCA 1053 …. 5.83 Nikolakis v Nikolakis [2010] FamCAFC 52 …. 9.106 Nixon, Marriage of (1992) FLC ¶92-308 …. 10.26 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 …. 4.125, 14.2, 14.3, 14.4, 14.16, 8.106, 8.108, 9.24 Norman v Norman [2010] FamCAFC 66 …. 4.125, 13.15 North & North (1987) 11 Fam LR 735; FLC ¶92-831 …. 12.36 Northern Territory of Australia v GPAO (1999) 161 ALR 318; 24 Fam LR 253; FLC ¶92838 …. 3.52, 8.66 Norton v Locke (2013) 50 Fam LR 517; FLC ¶93-567; [2013] FamCAFC 202 …. 5.93, 12.44, 15.13 Nygh v Kasey [2010] FamCA 146 …. 6.108

O O (Special Medical Procedure), Re [2010] FamCA 1153 …. 8.124 O’Brien & O’Brien (1982) 8 Fam LR 691; (1983) FLC ¶91-316 …. 10.36, 10.37, 13.21 O’Connor & Kasemsarn [2010] FamCA 987 …. 7.46 O’Dea & O’Dea (1980) 6 Fam LR 675; FLC ¶90-896 …. 3.15 O’Dempsey & van Raay (1990) FLC ¶92-178 …. 11.21, 11.28 O’Hara & McGuiness (1991) 14 Fam LR 723; FLC ¶92-220 …. 11.68 O’Neill & O’Neill (1998) FLC ¶92-811; [1998] FamCA 67 …. 15.61 Oakley v Cooper [2009] FamCAFC 133 …. 9.50 Oates & Crest (2008) FLC ¶93-365 …. 3.14 Obergefell v Hodges, Director, Ohio Department of Health 772 F 3d 388 (2015) …. 1.60 Obrenovic & McCauley, Marriage of (1985) FLC ¶91-655 …. 9.58 Official Trustee in Bankruptcy v Edwards (1997) 139 FLR 104; 21 Fam LR 829; FLC ¶92763 …. 6.44 Official Trustee in Bankruptcy & Donovan (1996) FLC ¶92–703 …. 15.68 Ogden & Ogden (2010) 245 FLR 1; [2010] FMCAfam 865 …. 13.25, 15.17 OHB & MTM (2007) FLC ¶93-338 …. 8.16 Oliver & Oliver (1977) 4 Fam LR 252 …. 11.29 Olliver, Marriage of (1978) 4 Fam LR 360; FLC ¶90-499 …. 14.45 Oltman v Harper (No 2) [2009] FamCA 1360 …. 5.77, 5.82, 6.24 Omacini, Marriage of (2005) 33 Fam LR 134; FLC ¶93-218 …. 13.14, 13.27, 13.28, 13.30

Ongal & Materns [2015] FamCAFC 68 …. 8.132 Ongal & Materns (No 3) [2013] FamCA 946 …. 8.133 Opperman, Marriage of (1978) 4 Fam LR 135; FLC ¶90-432 …. 6.99, 6.100 Orpheus & Orpheus [2014] FamCAFC 70 …. 9.21, 9.23 OS v PS (2007) 38 Fam LR 467 …. 9.5, 9.7 Osman & Mourrali (1989) 96 FLR 362; 13 Fam LR 444; (1990) FLC ¶92-111 …. 6.36, 6.37, 6.38 Otway, Marriage of (1986) 11 Fam LR 99; FLC ¶91-807 …. 6.35, 6.37

P P v B (Paternity: Damages for Deceit) [2001] 1 Fam Law R 1041 …. 11.67 — v Director General, Department of Community Services [2002] FamCA 321 …. 8.156 — v P (1994) 181 CLR 583 …. 4.46, 4.59, 4.60, 4.64 — v — [2006] FMCAfam 518 …. 9.27, 9.122 P & P (1994) 17 Fam LR 457; FLC ¶92-462 …. 8.121 P & P [2002] FMCAfam 341 …. 13.5 P & P & Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1; FLC ¶92-615 …. 8.79, 8.82, 8.122, 8.123 P & P, Re an Application by [1973] VR 533; (1973) 21 FLR 450 …. 5.37 Page & Page (1980) 6 Fam LR 669; (1981) FLC ¶91-025 …. 3.15 Page & Page (No 2) (1982) FLC ¶91-241 …. 15.61 Pagliarella, Marriage of (1993) 16 Fam LR 688; FLC ¶92-400 …. 8.86 Paisio (No 2), (1979) 5 Fam LR 281; FLC ¶90-659 …. 9.73 Palmer & Palmer (1985) 10 Fam LR 406; FLC ¶91-606 …. 13.21 Palmer & Palmer (2010) 244 FLR 121; [2010] FMCAfam 999 …. 14.42 Palmerston Hospitals Pty Ltd v Holmdore Nominees Pty Ltd (1992) FLC ¶92-275 …. 15.33 Pandetikis v Manna [2010] FAMCA 841 …. 2.28 Pannell, Marriage of (1996) FLC ¶92-660 …. 9.14 Park, Estate of; Park v Park [1954] P 112 …. 6.46, 6.47, 6.50 Park & Park (1978) 4 Fam LR 488; FLC ¶90-509 …. 10.37 Parker v Parker (1993) 16 Fam LR 863; DFC ¶95-139 …. 10.49 Parker & Parker (1983) 9 Fam LR 323; FLC ¶91-364 …. 15.72 Parker & Parker (2010) 43 Fam LR 548; [2010] FamCA 664 …. 15.49 Parker & Parker (2012) FLC ¶93-499; [2012] FamCAFC 33 …. 15.53, 15.55, 15.59 Parojcic v Parojcic [1959] 1 All ER 1 …. 6.28, 6.29 Parsons & Kidson [2014] FamCA 951 …. 11.76 Pascarl & Oxley [2013] FamCAFC 47 …. 8.160

Patching, Marriage of (1995) 18 Fam LR 675; FLC ¶92-585 …. 15.70 Patfull & Sheldon [2010] FMCAfam 1377 …. 13.8 Patrick, Re (2002) 28 Fam LR 579; FLC ¶93-096 …. 7.20, 9.61, 11.65 Patsalou, Marriage of (1995) 18 Fam LR 426; FLC ¶92-580 …. 9.34 Patterson & Patterson (1979) FLC ¶90-705 …. 10.27 Paul & Paul [2012] FamCAFC 64 …. 11.18, 11.21 Pavey, Marriage of (1976) 10 ALR 259; 25 FLR 450; 1 Fam LR 11,358; FLC ¶90-051 …. 6.65, 6.68, 6.71, 6.79, 6.80, 6.82, 6.119, 9.13 Pavli & Beffa [2013] FamCA 144 …. 8.26, 8.62, 9.5, 9.8 Pavone & Pavone [2015] FamCA 100 …. 13.9, 15.21 Pearce v South Australian Health Commission (1996) 66 SASR 486 …. 7.33 Pearson v Pearson [1961] VR 693 …. 12.15, 13.11 Peck v Peck [1965] SASR 293 …. 12.15 Pelerman & Pelerman (2000) FLC ¶93–037 …. 15.71 Pellegrino & Pellegrino (1997) 22 Fam LR 474; FLC ¶92-789 …. 14.51 Penza & Penza (1988) FLC ¶91-949 …. 14.59 Peter v Elspeth [2009] FamCA 551 …. 9.75 Peters & Peters [2012] FamCAFC 105 …. 11.64 Petersen v Petersen (1927) 44 WN (NSW) 96 …. 6.37 Petersons & Petersons (1981) 7 Fam LR 402; FLC ¶91-095 …. 13.31 Petruski v Balewa (2013) 49 Fam LR 116; [2013] FamCAFC 15 …. 14.8 Petterd & Petterd (1976) 1 Fam LR 11,496; FLC ¶90-065 …. 10.26, 10.27 Pettitt v Pettitt [1970] AC 777 …. 12.14 Pflugradt & Pflugradt (1981) 7 Fam LR 188; FLC ¶91-052 …. 15.29, 15.31 Pheasant v Pheasant [1972] Fam 202 …. 1.34 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465 …. 4.6, 4.23, 4.83, 4.84, 4.86, 4.87 Phillips, Marriage of (2002) 29 Fam LR 128; FLC ¶93-104 …. 13.14, 13.30 Pickering v Pickering (1978) 35 FLR 1; 4 Fam LR 349; FLC ¶90-507 …. 6.53, 6.106 Pidoto v Victoria (1948) 68 CLR 87 …. 4.38 Pierce, Marriage of (1998) 24 Fam LR 377; (1999) FLC ¶92-844 …. 14.45, 14.46 Piper & Mueller [2015] FamCAFC 241 …. 15.45, 15.58 Playford v Collier (1984) 9 Fam LR 634; FLC ¶91-529 …. 6.101 Pleym & Pleym (1986) 11 Fam LR 451; FLC ¶91-762 …. 13.21 Plows & Plows (No 2) (1979) 5 Fam LR 590; FLC ¶90-712 …. 9.74 Poisat & Poisat [2014] FamCAFC 128 …. 8.106 Polonius v York [2010] FamCAFC 228 …. 14.10, 14.34, 14.42 Ponting v Ponting [2011] FamCAFC 88 …. 9.91

Pope & Pope [2012] FamCA 204 …. 13.21 Potter v Potter (1954) 90 CLR 391 …. 6.77 Potter & Potter (2007) 37 Fam LR 208; FLC ¶93-326 …. 9.101, 9.108 Potthoff & Potthoff (1978) 4 Fam LR 267; FLC ¶90-475 …. 14.18 Potts v Bimms [2007] FamCA 394 …. 9.26, 9.61 Powell v Anderson (1977) FLC ¶90-235 …. 9.58 — v Supresencia (2003) 30 Fam LR 463; DFC ¶95-275 …. 14.9, 14.10 Power & Power (1988) 12 Fam LR 97; FLC ¶91-911 …. 9.47 Pratt & Pratt (2012) 47 Fam LR 234; [2012] FamCAFC 81 …. 10.37, 13.13 Prestwitch & Prestwitch (1984) 9 Fam LR 1069; FLC ¶91-569 …. 15.4 Prewonik v Scott [2005] NSWSC 74 …. 10.54 Price v Underwood (2008) 39 Fam LR 614; [2008] FamCAFC 46 …. 6.96 — v Underwood (Divorce Appeal) (2009) 231 FLR 308; 41 Fam LR 614; [2009] Fam CAFC 127 …. 6.9, 6.71, 6.91, 6.96 Prior, Marriage of (2002) 30 Fam LR 72; FLC ¶93-105 …. 15.70, 15.76 Pritchard, Marriage of (1982) FLC ¶91-286 …. 10.19 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 5.97 Prowse, Marriage of (1994) 18 Fam LR 348; (1995) FLC ¶92–557 …. 15.68, 15.70, 15.76 Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC ¶92-211 …. 15.70 Public Trustee (SA) & Keays; Trustee of Broken Hill Mine Employees’ Pension Fund (1985) 10 Fam LR 610; FLC ¶91-651 …. 13.21, 13.22 Pugh v Pugh [1951] P 482 …. 5.69, 6.54 Pulford v Pulford [1923] P 18 …. 6.62, 6.63, 6.66, 6.73 Punter v Secretary for Justice [2007] 1 NZLR 40 …. 8.154 Puttick v Attorney-General [1980] Fam 1 …. 6.37

Q Q, Re …. (1994) 18 Fam LR 442; (1995) FLC ¶92-565 …. 14.44 Quigley & Quigley (1976) 1 Fam LR 11,526; FLC ¶90-074 …. 6.63, 6.66

R R (A Minor), Re [1991] 4 All ER 177 …. 8.32 R & B & Separate Representative (1996) 19 Fam LR 714; FLC ¶92-658 …. 9.14 R & R (1984) 9 Fam LR 1078; (1985) FLC ¶91-615 …. 9.78 R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309 …. 9.21 — v Brislan; Ex parte Williams (1935) 54 CLR 262 …. 4.3 — v Cook; Ex parte Twigg (1980) 6 Fam LR 161; 147 CLR 15 …. 4.129 — v Dovey; Ex Parte Ross (1979) 141 CLR 526; 5 Fam LR 1; FLC ¶90-616 …. 15.17

— v O’Brien [1974] 3 All ER 663 …. 6.91 — v R (1988) 23 Fam LR 456; FLC ¶92-820 …. 9.31 — v R: Children’s Wishes (2000) 25 Fam LR 712; FLC ¶93-000 …. 9.43 — v R (No 1) [2002] FMCAfam 153 …. 11.88 — v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504 …. 4.83, 4.129, 12.37 — v Terry [1955] VLR 114 …. 3.28 — v Watson; Ex parte Armstrong (1976) 136 CLR 77 …. 4.129 Rabab v Rashad [2009] FamCA 69 …. 6.44 Raby, Marriage of (1976) 2 Fam LR 11,348; FLC ¶90-104 …. 8.59, 9.47 Raine v Creed [2015] FamCAFC 133 …. 10.36, 14.67 Ralph & Ralph (1977) 3 Fam LN No 34; FLC ¶90-292 …. 9.129 Ramero v Chavez [2011] FamCA 387 …. 9.75 Ramsey, Marriage of (No 2) (1983) 8 Fam LR 1005; FLC ¶91-323 …. 10.37, 10.39 Ramsey & Ramsey (1983) FLC ¶91-301 …. 10.39 Rand & Rand (2008) FLC ¶93-370; [2008] FamCAFC 50 …. 15.22 Rastall v Ball (2010) 44 Fam LR 256 …. 2.57, 2.62, 2.64 Ray v Males [2009] FamCA 219 …. 4.68 Read, Marriage of (1977) 2 Fam LR 11,596; FLC ¶90-201 …. 6.112 Redman v Redman (2013) FLC ¶93-563 …. 15.39 Redman & Redman (1987) FLC ¶91-805; 11 Fam LR 411 …. 10.30 Reed & Reed; Grellman (Intervenor) (1989) 13 Fam LR 566; (1990) FLC ¶92-105 …. 13.21, 15.61 Regan v Walsh (2014) FCCA 2535; FLC ¶93-614 …. 5.108, 12.44 Reid v Lynch (2010) 44 Fam LR 141; FLC ¶93-448 …. 8.108 Reihana & Reihana (1980) 6 Fam LR 134 …. 9.66 Relationships Australia (Qld) v M (2006) 37 Fam LR 12 …. 2.57 Rewal, Marriage of (1991) 103 FLR 384; FLC ¶92-225 …. 6.24 Reynolds & Kilpatrick (1992) 16 Fam LR 601; (1993) FLC ¶92-351 …. 8.66 Reynolds & Reynolds (1984) 10 Fam LR 388; (1985) FLC ¶91-362 …. 13.31 Reynolds & Sherman [2015] FamCAFC 128 …. 9.128 Ricci v Jones [2011] FamCAFC 222 …. 5.98, 5.105, 5.107, 5.108, 5.109, 5.111, 12.44 Rice v Miller (1993) 16 Fam LR 970; FLC ¶92-415 …. 9.59 Rice & Asplund (1979) 6 Fam LR 570; FLC ¶90-725 …. 8.105, 8.106, 8.107, 8.108, 8.130, 9.24, 14.4 Rice & Rice (2015) 52 Fam LR 618; [2015] FamCA 85 …. 15.28 Rich & King [2010] FCWA 130 …. 6.38 Richardson, Marriage of (1979) FLC ¶90-603 …. 10.23 Richardson, Marriage of (1999) 26 Fam LR 523 …. 13.5 Richardson & Richardson [2008] FamCAFC 107 …. 13.4

Rick v King [2011] FamCAFC 220 …. 6.38 Rickaby & Rickaby (1995) 19 Fam LR 814; FLC ¶92-642 …. 13.21 Rickie & Rickie (1979) 4 Fam LR 737; FLC ¶90-626 …. 15.31 Rimmer v Rimmer [1953] 1 QB 63 …. 12.13 Risk v Risk [1951] P 50 …. 5.6 Rivas & Stephen [2014] FCCA 2144 …. 9.107 Roberts & Roberts (1977) 3 Fam LN N59 …. 10.31 Robertson & Robertson [2012] FamCAFC 60 …. 14.7 Robinson v Robinson [1961] WAR 56 …. 12.15 Robinson & Huff (1990) FLC ¶92-168 …. 15.70 Robinson & Shannon [2015] FamCA 1124 …. 3.3 Robinson & Willis (1982) 8 Fam LR 131 …. 4.127 Roda & Roda [2014] FamCA 943 …. 9.43 Roda & Roda (No 2) [2015] FamCA 727 …. 9.43 Rogers & Rogers (1980) FLC ¶90-874 …. 14.37 Rohde, Marriage of (1984) 10 Fam LR 56; FLC ¶91-592 …. 15.72 Rolfe, Marriage of (1977) 5 Fam LR 146; (1979) FLC ¶90-629 …. 14.18, 14.19 Ronalds & Victor [2011] FamCA 389 …. 7.49 Rosati v Rosati (1998) 23 Fam LR 288; FLC ¶92-804 …. 13.31 Rose & Rose (1976) 2 Fam LR 11,101; FLC ¶90-064 …. 8.95 Rosie (Special Medical Procedure), Re [2011] FamCA 63 …. 8.124 Rossi, Marriage of (1980) 6 Fam LR 148; FLC ¶90-839 …. 9.97 Roth & Roth [2014] FamCA 207 …. 8.62 Rouse & Rouse (1981) 7 Fam LR 780; FLC ¶91-073 …. 10.26 Roux v Herman [2010] 244 FLR 416 …. 2.61, 2.62, 2.64 Rowell v Keogh [2011] FamCAFC 74 …. 9.91 Roy v Sturgeon (1986) 11 Fam LR 271 …. 5.95, 6.117 Ruane v Bachmann-Ruane [2009] FamCA 1101 …. 15.52 Ruane & Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369 …. 4.87, 4.88 Russell v Close [1993] FamCA 62 …. 9.112 — v Russell [1895] P 315 …. 1.32 — v — [1897] AC 395 …. 1.32 — v Russell; Farrelly v Farrelly (1976) 134 CLR 495 …. 1.40, 4.6, 4.20, 4.31, 4.32, 4.33, 4.34, 4.37, 4.40, 4.44, 4.45, 4.46, 4.52, 4.82, 10.18, 12.37 Ruth (aka Hutton) v Hutton (2011) 45 Fam LR 399 …. 9.101 Rutherford & Rutherford (1991) FLC ¶92-255 …. 15.14 Ryan, Marriage of (1988) 12 Fam LR 529; FLC ¶91-970 …. 10.30 Ryan & Jocye [2011] FMCAfam 225 …. 15.49

Rzetelski & Johnson (1988) 12 Fam LR 304; FLC ¶91-945 …. 12.40

S S (a Minor), Re [1998] AC 750 …. 8.154 S, Marriage of (1980) 5 Fam LR 831 …. 5.15 S, Re (1989) 13 Fam LR 660; (1990) FLC ¶92-124 …. 8.118 S v B [2005] 1 Qld 537 …. 10.52 — v — (No 2) (2004) 32 Fam LR 429; [2004] QCA 449 …. 5.99, 6.118, 6.119, 6.120 — v R (1999) 24 Fam LR 213; FLC ¶92-834 …. 9.113 — v S (1997) 22 Fam LR 112; FLC ¶92-762 …. 8.76 S & P (1990) 14 Fam LR 251; FLC ¶92-159 …. 9.113 S & S (1980) 42 FLR 94; 5 Fam LR 831; FLC ¶90-820 …. 6.30, 6.34 S & S [2003] FMCAfam 104 …. 6.70 Saba & Saba (1984) 9 Fam LR 780; FLC ¶91-579 …. 12.40, 13.21 Saberton & Saberton [2013] FamCAFC 89 …. 11.75, 11.76 Sacrinity v Wolodzko [2010] FamCA 1258 …. 9.60 Sadlier v Sadlier [2015] FamCAFC 130 …. 10.19 Sahari, Marriage of (1976) 2 Fam LR 11,126; FLC ¶90-086 …. 8.127 Saintclaire & Saintclaire [2013] FamCA 491 …. 15.50 Saintclaire & Saintclaire [2015] FamCAFC 245 …. 15.50 Saliba & Romyen [2015] FamCA 927 …. 7.54 Sally (Special Medical Procedure), Re [2010] FamCA 237 …. 8.124 Salvati v Donato [2010] FamCAFC 263 …. 9.20 Sampson v Hartnett (No 10) (2007) 38 Fam LR 315; FLC ¶93-350 …. 9.121, 9.122, 9.123 Sand & Sand (2012) 48 Fam LR 458; FLC ¶93-519 …. 13.28 Sanders, Marriage of (1976) 1 Fam LR 11,433; FLC ¶90-078 …. 4.124, 9.12 Sanders v Sanders (1967) 116 CLR 366 …. 4.27 Sandler & Kerrington (2007) FLC ¶93-323 …. 8.107, 8.130, 8.148 Sandrk, Marriage of (1991) 15 Fam LR 197; FLC ¶92-260 …. 15.74 Santos v Santos [1972] Fam 247 …. 6.66 Saunders v Saunders (1976) 1 Fam LR 11,477; FLC ¶90-096 …. 6.63 Savery, Marriage of (1990) 13 Fam LR 812; FLC ¶92-131 …. 11.76, 11.81 Savianne v Marriott [2014] FamCA 882 …. 5.101 Sawant & Karanth [2014] FamCAFC 235 …. 9.116, 9.121 Saward v Saward [1963] Tas SR (NC) N17; [1964] ALR 1004; (1963) 5 FLR 28 …. 6.48 Sayer & Radcliffe [2012] FamCAFC 209 …. 9.3, 9.121 SB v Parramatta Children’s Court [2007] NSWSC 1297 …. 3.44 SCA v Maynard [2003] FamCA 911 …. 8.157

Schenck, Marriage of (1981) 7 Fam LR 170; FLC ¶91-023 …. 9.66 Schmidt, Marriage of (1976) 1 Fam LR 11,355; FLC ¶90-052 …. 5.29, 6.99, 6.105, 6.106 Schmidt & Schmidt (1979) 28 ALR 84; 5 Fam LR 421; FLC ¶90-685 …. 9.69 Schorel v Schorel (1990) 14 Fam LR 105; FLC ¶92-144 …. 6.102 Schwarzkopff, Marriage of (1992) 15 Fam LR 545; FLC ¶92-303 …. 3.20 Scott v Scott (1990) 26 VLR 588 …. 6.31 — v Sebright (1886) 12 PD 21 …. 6.28 Scott & Danton [2014] FamCAFC 203 …. 13.16, 13.38 SCVG & KLD (2014) FLC ¶93-582 …. 9.23 SCVG & KLD [2014] FamCAFC 42 …. 9.21 Sealey v Archer [2008] FamCAFC 142 …. 9.3 Sean & Russell (Special Medical Procedure), Re (2010) 44 Fam LR 210 …. 8.124 Secretary, Attorney-General’s Department & TS [2000] FamCA 1692 …. 8.153 Secretary, Department of Health and Community Services v JWB & SMB (Re Marion) (1992) 175 CLR 218; 15 Fam LR 392; FLC ¶92-293 …. 4.57, 8.31, 8.32, 8.33, 8.118, 8.119, 8.124, 9.41 Secretary DSS v SRA (1993) 118 ALR 467 …. 5.13 Secretary of Department of Health & Human Services v Ray (2010) 45 Fam LR 1; [2010] FamCAFC 258; FLC ¶93-457 …. 3.45, 3.48, 4.68, 8.16, 8.125 Secretary of the Dept of Human Services-State Central Authority v CR (2005) FLC ¶93243 …. 8.155 Sehota, Re [1978] 3 All ER 385 …. 5.6 Seidler v Schallhofer (1982) 2 NSWLR 80; 8 Fam LR 598 …. 1.53 Sellers v Sexton [2011] FamCAFC 227 …. 9.106 Seminara & Ferguson (1993) 16 Fam LR 410 …. 3.8, 3.15 Semperton & Semperton (2012) 47 Fam LR 626; [2012] FamCAFC 132 …. 15.11 Senior & Anderson (2011) 250 FLR 444; 45 Fam LR 540; FLC ¶93-470; [2011] FamCAFC 129 …. 15.44, 15.49, 15.53, 15.54 Separate Representative v JHE & GAW (1993) 16 Fam LR 485; FLC ¶92-376 …. 8.80, 9.115 Seymour & Seymour [2011] FamCAFC 97 …. 11.76 SG, Re (1968) 11 FLR 326 …. 5.40 Sharp & Sharp [2011] FamCAFC 150 …. 13.4 Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC ¶95-414 …. 10.54 Shaw & Shaw (1989) 12 Fam LR 806; FLC ¶92-010 …. 13.24, 14.59 Shaw & Shaw [2009] FMCAfam 9 …. 14.41 Shelley v Markov [2012] FCWA 68 …. 5.108 Shepherd & Shepherd (1979) FLC ¶90-729 …. 9.69 Sheridan & Sheridan (1994) 18 Fam LR 415; FLC ¶92-517 …. 9.14

Shimizu & Tanner [2011] FamCA 271 …. 13.28 Shindler v Shindler (1956) 31 ALJ R 73 …. 6.77 Sieling & Sieling (1979) 4 Fam LR 713; FLC ¶90-627 …. 15.15 Simmons v Simmons (2008) 232 FLR 73; 40 Fam LR 520; [2008] FamCA 1088 …. 15.24 Simpson & Hamlin (1984) 9 Fam LR 1040; FLC ¶91-576 …. 15.74 Simpson-Morgan & Burreket [2009] FamCA 138 …. 6.44 Sinclair v Webster (2013) FLC ¶93-551 …. 6.119 — Sinclair v Whittaker [2012] FamCA 1050 …. 5.109, 5.110 — v — (2013) FLC ¶93-551 …. 5.101, 5.102, 5.107, 5.109, 6.119 Sindel & Milton [2010] FamCAFC 232 …. 14.58 Singerson & Joans [2014] FamCAFC 238 …. 14.10, 14.53, 14.54 SK v KP [2005] 3 NZLR 590 …. 8.154 Skoflek & Baftirovski (1988) 12 Fam LR 55; FLC ¶92-906 …. 12.33 Skrabl & Leach (1989) 13 Fam LR 83; FLC ¶92-016 …. 9.130 SL & ELH [2005] FamCA 132 …. 14.28 Slater v Light (2011) 45 Fam LR 41 …. 9.26 Slazenger v Hunt (S108/2005) …. 4.47, 15.24, 15.30 Sloan, Marriage of (1994) 18 Fam LR 249; FLC ¶92-507 …. 11.81, 11.89 Smirnov v Turova [2009] FMCAfam 1083 …. 2.62 Smith, Marriage of (1994) 18 Fam LR 133; FLC ¶92-494 …. 11.14, 11.15 Smith; St James; Smith v Wickstein (1996) 21 Fam LR 118; FLC ¶92-714 …. 11.26 Smith v Smith (1984) FLC ¶91-512 …. 15.38 — v — (1986) 161 CLR 217 …. 4.83, 4.85, 4.87 Smith & Fields [2012] FamCA 510 …. 14.28, 14.31 Smith & Smith (1990) 14 FamLR 521; FLC ¶92-200 …. 13.5 Smith & Smith (1991) 15 Fam LR 206; FLC ¶92-261 …. 13.30 Smith & Smith (No 2) (1985) 10 Fam LR 283; FLC ¶92-604 …. 4.87 Smyth v Pappas [2011] FamCA 434 …. 5.104, 5.105, 5.109, 5.111, 6.117, 6.119, 6.122 Smythe, Marriage of (1983) 8 Fam LR 1029; FLC ¶91-337 …. 8.58, 9.65, 9.66 Soblusky, Marriage of (1976) 2 Fam LR 11,528; FLC ¶90-124 …. 10.14, 10.30, 10.33, 14.34 Sommerville & Sommerville (1999) 27 Fam LR 233; (2000) FLC ¶93-042 …. 15.75 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 …. 9.21 Sowa v Sowa [1961] P 70 …. 5.6 Spano & Spano (1979) 5 Fam LR 506; FLC ¶90-707 …. 10.26, 10.36 Spanos, Marriage of (1980) 6 Fam LR 345; FLC ¶90-871 …. 6.67, 6.70, 6.85 Spanos & Hallett [2015] FamCA 458 …. 8.54 Spencer v Speight [2014] FamCA 436 …. 5.101

Spencer & Verity [2012] FamCAFC 210 …. 8.130 Spiteri & Spiteri (2005) 33 Fam LR 109; FLC ¶93-214 …. 14.36, 14.46 Spratley, Marriage of (1977) 3 Fam LR 11,131; FLC ¶90-222 …. 6.93 Spratley & Spratley (No 2) (1978) 4 Fam LR 52; FLC ¶90-414 …. 6.93 Spratt v Hermes (1965) 114 CLR 226 …. 4.71 Spry, Marriage of (1977) 3 Fam LR 11,330; FLC ¶90-271 …. 9.69 Spry & Roet (1977) FLC ¶90-301 …. 11.17 SPS & PLS (2008) 39 Fam LR 295; FLC ¶93-363 …. 8.90, 8.107 SS v AH [2010] FamCAFC 13 …. 1.91 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 …. 4.83, 4.84 Stanford v Stanford (2011) 46 Fam LR 240; [2011] FamCAFC 208 …. 6.71, 10.18 — v — (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518 …. 6.71, 12.21, 12.28, 12.31, 12.34, 12.35, 12.36, 12.43, 13.1, 13.10, 13.14, 13.16, 13.17, 13.18, 13.20, 13.29, 13.30, 13.32, 13.34, 13.35, 13.36, 13.37, 13.38, 13.40, 14.17, 14.34, 14.67, 14.68, 15.39, 15.48, 15.51 — v — (2012) 47 Fam LR 105; FLC ¶93-495; [2012] FamCAFC 1 …. 6.71, 10.18, 13.16 Stapleton v Hayes [2011] FamCAFC 70 …. 9.101, 9.112 State Central Authority v Ayob (1997) FLC ¶92-746 …. 8.155 State Central Authority & Camden [2012] FamCFC 45 …. 8.154 State Central Authority & Hajjar (2010) FamCA 648 …. 8.155 State Central Authority & Young [2012] FamCA 563 …. 8.157 Stay & Stay (1997) 21 Fam LR 626; FLC ¶92-751 …. 14.25 Stedman v Stedman (No 2) [2015] FamCA 392 …. 13.4 Stein & Stein (1986) 11 Fam LR 353; FLC ¶91-779 …. 13.24 Stein & Stein (2000) 25 Fam LR 727; FLC ¶93-004 …. 10.30 Steinbrenner & Steinbrenner [2008] FamCAFC 193 …. 14.7 Stephens & Stephens (2007) FLC ¶93-336 …. 15.31 Stephens & Stephens (Enforcement) (2009) 42 Fam LR 423; FLC ¶93-425 …. 15.17 Sterling v Sterling & Protective Commissioner [2000] FamCA 1150 …. 6.71 Stevens & Lee (1990) 102 FLR 108; (1991) FLC ¶92-201 …. 9.92 Stirling v Dobson (2011) FLC ¶98-056 …. 11.11, 11.29, 11.76, 11.84 Storie v Storie (1945) 80 CLR 597 …. 9.10 Stowe & Stowe (1980) 6 Fam LR 757; (1981) FLC ¶91-027 …. 15.15 Strahan & Strahan (2009) 42 Fam LR 203; (2011) FLC ¶93-466 …. 15.68 Styles & Palmer [2014] FamCA 383 …. 11.13, 11.29 Suiker, Marriage of (1993) 17 Fam LR 236; FLC ¶92-436 …. 15.71 Sullivan v Sullivan (1818) 2 Hag Con 238; 161 ER 728 …. 6.31, 6.41, 6.49 Summerby v Cadogen [2011] FamCAFC 205 …. 9.91 Suria, Marriage of (1977) 29 FLR 308; 3 Fam LR 11,541; FLC ¶90-305 …. 6.34

Surridge & Surridge (2015) FamCA 493 …. 15.11 Sutton & Sutton (No 2) (1976) 2 Fam LR 11,256 …. 4.124 Swift v Kelly (1835) 3 Knapp 257; 12 ER 648 …. 6.31 Swinton v Barnstable [2011] FamCA 548 …. 13.28 Szechter v Szechter [1971] P 286 …. 6.29, 6.30

T T v N (2003) 31 Fam LR 257; FLC ¶93-172 …. 8.81, 9.36 — v O [2006] FMCAfam 709 …. 9.122 — v S (2001) 28 Fam LR 342; FLC ¶93-086 …. 9.36 — v P (2000) FLC ¶93-049 …. 8.81 T & L (2000) 27 Fam LR 40; FLC ¶93-056 …. 8.86 Taisha v Peng (2012) 48 Fam LR 150 …. 5.99, 5.108 Talbot v Norman (2012) FLC ¶93-504 …. 8.116 Talbot & Talbot [2015] FamCAFC 132 …. 13.29 Tamaniego v Tamaniego [2010] FamCAFC 254 …. 13.2 Tansell, Marriage of (1977) 3 Fam LR 11,466; FLC ¶90-307 …. 6.112 Tansell v Tansell (1977) 3 Fam LR 11,441; FLC ¶90-280 …. 6.112 Tapiolas v Tapiolas (1985) 10 Fam LR 1 …. 12.40 Tapper & McFarlane [2013] FCCA 732 …. 8.141 Tarritt v Director-General, Department of Community Services [2008] FamCAFC 34 …. 8.158 Tasman v Tisdall (SSAT Appeal) [2010] FMCAfam 425 …. 11.74 Tate v Tate (2000) 26 Fam LR 731; FLC ¶93-047 …. 13.33 — v — (2002) 29 Fam LR 195; FLC ¶93-107 …. 3.20 Tate & Tate (No 3) (2003) 30 Fam LR 427; FLC ¶93-138 …. 8.141 Taylor v Barker (2007) 37 Fam LR 461; FLC ¶93-345; [2007] Fam CA 1236 …. 8.63, 9.3, 9.116, 9.121 — v Taylor (1979) 143 CLR 1; 5 Fam LR 289 …. 14.67, 15.68 Teenager, Re a (1988) 13 Fam LR 85; FLC ¶92-006 …. 8.118 Teh v Muir [2014] FamCA 483 …. 5.93 Teh & Muir [2015] FamCAFC 224 …. 15.15 Telfer v Telfer (1996) 20 Fam LR 619; FLC ¶92-688 …. 8.76 Tems & Tems (1990) 100 FLR 472; FLC ¶92-169 …. 13.5 Terry v Keeler [2008] FMCAfam 300 …. 9.7 Teves & Campomayor (1994) 18 Fam LR 844; (1995) FLC ¶92-578 …. 6.30 Thomason & Malhotra [2010] FamCAFC 85 …. 8.144 Thompson & Thompson (1977) 2 Fam LR 11,649; FLC ¶90-206 …. 6.85

Thorley v Greer [2015] FamCA 213 …. 13.35, 13.40 Thorne & Kennedy [2015] FCCA 484 …. 15.49 Tilly, Re v Minister for Family and Community Services [2015] NSWSC 1208 …. 8.125 Tindall & Saldo [2014] FamCAFC 1 …. 8.132 Ting v Fingal [2013] FamCA 29 …. 5.108 TNL & CYT (2005) 33 Fam LR 167; [2005] FamCA 77 …. 7.8, 7.10 Tobin v Tobin (1999) 24 Fam LR 635; FLC ¶92-848 …. 7.20, 11.7, 11.65 Todd (No 2), Marriage of (1976) 9 ALR 401; 25 FLR 260; 1 Fam LR 11,186; FLC ¶90-008 …. 6.65, 6.68, 6.79 Tomasetti v Tomasetti (2000) 26 Fam LR 114; FLC ¶93-023 …. 14.7 Toohey & Toohey (1991) 14 Fam LR 843; FLC ¶92-244 …. 15.31 Torie & Torie (1981) 7 Fam LR 370; FLC ¶91-046 …. 9.66 Townsend, Marriage of (1994) 18 Fam LR 505; (1995) FLC ¶92-569 …. 13.26, 13.28, 14.13 Townsend v Director-General, Department of Families, Youth and Community Care (1999) 24 Fam LR 495; FLC ¶92-842 …. 8.155 Tozer & Tozer (1989) 13 Fam LR 531 …. 14.11 Trapp v Vonne (2009) 41 Fam LR 471 …. 2.60 Trask & Westlake [2015] FamCAFC 160 …. 12.5, 14.15, 14.32, 14.50 Travers v Holley [1953] P 246; 2 All ER 794; 3 WLR 507 …. 12.38 Truman v Clifton [2010] FCWA 91 …. 5.97, 5.104, 5.108, 6.115, 6.119, 6.122, 6.123 Truman & Truman (2008) 38 Fam LR 614; FLC ¶93-360 …. 8.69, 8.70, 8.71, 8.100 Truman & Truman [2013] FamCA 765 …. 13.29 Truscott & Truscott (1986) FLC ¶91-751 …. 11.17 Trustee of the Property of Lemnos v Lemnos (2009) 41 Fam LR 120; FLC ¶93-394; [2009] FamCAFC 20 …. 15.65 TRV v Department of Health and Human Services (Human Rights) [2015] VCAT 1188 …. 7.36 Tryon v Clutterbuck (2007) 211 FLR 1; FLC ¶93-332 …. 7.12, 8.45 — v — [2011] HCATrans 133 …. 2.44, 8.92 — v — (No 2) (2009) 42 Fam LR 118; FLC ¶93-412 …. 7.12, 7.13 — v Clutterbuck and Attorney-General (Cth) (Intervenor) (2010) 246 FLR 193; 44 Fam LR 361; FLC ¶93-453 …. 2.44, 8.92 Tuck, Marriage of (1979) 7 Fam LR 492; (1981) FLC ¶91-021 …. 11.21, 11.28 Tulk v Tulk [1907] VLR 64 …. 6.60, 6.78, 6.79 Turnbull & Turnbull (1990) 15 Fam LR 81; (1991) FLC ¶92-258 …. 15.33 Turner v Meyers (1808) 1 Hag Con 414; 161 ER 600 …. 6.45 Tye (No 1), Marriage of (1976) 1 Fam LR 11,235; FLC ¶90-028 …. 6.66, 6.69, 6.70 Tye & Tye (No 2) (1976) FLC ¶90-048; 2 Fam LR 11,205 …. 10.26

Tyler & Sullivan [2014] FamCA 178 …. 9.107 Tynan, Marriage of (1992) 16 Fam LR 621; (1993) FLC ¶92-385 …. 11.9, 11.24, 11.26, 11.28 Tyson v Tyson (1996) 187 CLR 707; 70 ALJR 285 …. 10.36 Tyson & Tyson (1993) 16 Fam LR 425; FLC ¶92-368 …. 10.20

U U v U (2002) 211 CLR 238; 29 Fam LR 74; FLC ¶93-112; [2002] HCA 36 …. 9.3, 9.5, 9.120, 9.121, 9.122, 9.123 Udall & Oaks [2010] FMCAfam 1482 …. 1.91 Unitingcare — Unifam Counselling and Mediation v Harkiss (2011) 252 FLR 309; FLC ¶93-476 …. 2.60, 2.61

V V, Re (1964) 6 FLR 266 …. 5.48 V v V (1985) 156 CLR 228 …. 4.55 V & G (1982) 8 Fam LR 193 …. 11.14 Vadisanis & Vadisanis (2014) FLC ¶93-593; [2014] FamCAFC 97 …. 15.16 Vakil v Vakil (1997) FLC ¶92-743 …. 10.37 Vakros & Letsos (2012) 47 Fam LR 172; [2012] FamCAFC 40 …. 7.8 Valentine & Lacerra [2013] FamCAFC 53 …. 8.22, 9.61 Valera Pty Ltd v Walker (No 2) [2010] NSWSC 1492 …. 10.49 Valier v Valier (orse Davis) (1925) 133 LT 830 …. 6.44 Vallance & Marco [2012] FamCA 653 …. 8.116 Van Ballekom & Kelly (2005) 34 Fam LR 1; FLC ¶93-233 …. 15.8 Van Rensburg & Paquay (1993) 16 Fam LR 680; FLC ¶92-391 …. 8.160 Van Wijk & Jetson (2005) FLC ¶93-240 …. 9.43 Vance & Carlyle [2014] FamCA 651 …. 8.112 Vartikian & Vartikian (No 2) (1984) 10 Fam LR 165 …. 10.36 Vass & Vass [2015] FamCAFC 51 …. 13.29 Vasser & Taylor-Black (2007) 37 Fam LR 256; FLC ¶93-329 …. 8.102, 9.101 Vaughan v Bele [2011] FamCA 436 …. 5.93, 5.107, 5.111, 5.113, 6.117, 6.120, 6.121 Vaughan & Vaughan (1981) 7 Fam LR 379; FLC ¶91-066 …. 10.36, 11.14 Vault v Isle (2012) 47 Fam LR 252; [2012] FamCAFC 93 …. 10.37 Vautin v Vautin (1998) 23 Fam LR 627; FLC ¶92-827 …. 10.4, 10.36 Vaziri & Maddison [2014] FamCa 897 …. 8.117 VC & CG (2010) FLC ¶93-434; [2010] FamCAFC 62 …. 15.31 Vega & Riggs (No 2) [2015] FamCA 911 …. 13.5

Vick & Hartcher (1991) 15 Fam LR 149; FLC ¶92-262 …. 10.22, 11.9, 11.78 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73 …. 4.127 Vine v Carey [2009] FMCAfam 1017 …. 5.97, 5.107, 5.108, 6.117, 6.120, 6.121, 10.52 Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson (1981) 148 CLR 383 …. 4.4, 4.55 VJ & CJ (1997) 22 Fam LR 166; FLC ¶92-772 …. 9.113 Vlug v Poulos (1997) 22 Fam LR 324; FLC ¶92-778 …. 8.26 Volen & Backstrom [2013] Fam CA 40 …. 6.117, 6.119, 6.121 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 8.160, 12.39 VR v RR (2002) 29 Fam LR 39; FLC ¶93-099 …. 8.37

W W, Re [1968] QWN 45 …. 5.39 W (A minor) (medical treatment), Re [1992] 4 All ER 627 …. 8.32, 8.34 W (Adoption), Re (1998) 23 Fam LR 538 …. 7.39 W (Sex abuse: standard of proof), Re (2004) 32 Fam LR 249; FLC ¶93-192 …. 9.110, 9.111 W v D & Royal Women’s Hospital (2000) EOC ¶93-045 …. 7.33 — v G (1996) 20 Fam LR 49 …. 7.57 — v J & S [1998] FamCA 44 …. 7.11 — v T (1998) 146 FLR 323; 23 Fam LR 175; FLC ¶92-808 …. 5.56, 6.24 — v W [2002] FamCA 1143 …. 11.19 W & G (No 1) (2004) 35 FamLR 417; (2005) FLC ¶93-247 …. 8.117 W & G (No 2) (2006) 35 Fam LR 439; (2005) FLC ¶93-248 …. 8.37, 9.68, 9.69, 9.70 W & W, Re: Abuse Allegations; Expert Evidence (2001) 28 Fam LR 45; FLC ¶93-085 …. 3.40, 8.87 W & W (1980) 6 Fam LR 538; FLC ¶90-872 …. 14.18, 14.67 W & W [2003] FMCAfam 82 …. 6.70 Wade-Ferrell & Read (2001) 27 Fam LR 484; FLC ¶93-069 …. 4.86, 4.87 Waite & Waite-Hollins (2007) FLC ¶193-325 …. 8.158 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 …. 1.61, 4.3, 4.22, 4.84, 4.86, 4.99, 4.100, 4.102, 4.104, 12.40 Wall & Wall (2002) FLC ¶93-110 …. 14.48 Wallace & Stelzer (2013) 51 Fam LR 115; FLC ¶93-566 …. 15.53, 15.58 Wallace & Stelzer [2014] HCATrans 135 …. 15.53 Walls & Robinson (2006) FLC ¶93-251 …. 9.121 Walsh & Johnson, Ex parte; Yates, Re (1925) 37 CLR 36 …. 4.23 Warby, Marriage of (2001) 28 Fam LR 443; (2002) FLC ¶93-091 …. 4.87, 13.11 Ward v Trench [2013] FamCA 478 …. 5.110

Wardale, Marriage of (1990) 99 FLR 436; 14 Fam LR 195; FLC ¶92-151 …. 6.9, 6.95, 6.96 Wardman & Hudson (1978) 5 Fam LR 889; FLC ¶90-466 …. 14.13, 14.18 Warhurst & Landy [2014] FamCAFC 201 …. 8.69 Warne & Warne (1982) 8 Fam LR 388; FLC ¶91-247 …. 13.30 Warnock & Warnock (1979) 5 Fam LR 668; FLC ¶90-726 …. 10.37 Warren & Warren (1986) 12 Fam LR 245; FLC ¶91-923 …. 6.9 Waters & Jurek (1995) 20 Fam LR 190; FLC ¶92-635 …. 10.4, 14.59, 14.60, 14.67 Watkins v Watkins (1952) 86 CLR 161 …. 6.77 Watson v Ling (2013) 49 Fam LR 303; FLC ¶93-527 …. 13.16, 13.29 — v Watson [2006] FMCAfam 293 …. 10.39 Watts & Watts (1976) 1 Fam LR 11,266; FLC ¶90-046 …. 8.95 Waugh & Waugh (1999) 27 Fam LR 63; (2000) FLC ¶93-052 …. 15.15 Way v Way [1950] P 71 …. 6.44 Webber & Webber (1985) 10 Fam LR 505; FLC ¶91-648 …. 15.4 Weir & Weir (1992) 16 Fam LR 154; (1993) FLC ¶92-388 …. 13.33 Weldon & Asher (2014) FLC ¶93-579; FCWA 11 …. 15.50 Wenceslas & Director-General, Department of Community Services [2007] FamCA 398 …. 8.153, 8.156 West & Green (1991) 16 Fam LR 811 …. 15.4 Whelan & Whelan [2010] FamCA 530 …. 14.42 Whistler & Whistler [2012] FamCAFC 97 …. 15.76 Whitaker, Marriage of (1980) 5 Fam LR 769; FLC ¶90-813 …. 15.31 White v White [2001] 1 AC 596 …. 14.52 White & Tulloch v White (1995) 19 Fam LR 696; FLC ¶92-640 …. 13.21 Whitehouse v Whitehouse (2009) 236 FLR 272; 42 Fam LR 319; FLC ¶93-415; [2009] FamCAFC 207 …. 4.88, 12.36 Whiteley, Marriage of (1992) FLC ¶92-304 …. 14.12, 14.25 Whiteoak, Marriage of (1980) FLC ¶90-837 …. 6.69, 6.70 Whitford, Marriage of (1979) 4 Fam LR 754; FLC ¶90-612 …. 10.18, 10.27, 13.2, 13.4, 13.6 Whitly v Ingham (2013) FCCA 869 …. 7.11 Wiggins, Marriage of (1976) 9 ALR 8; 1 Fam LR 11,101; FLC ¶90-004 …. 6.79 Wilcock v Sain (1986) 11 Fam LR 302; DFC ¶96-040 …. 6.117 Wilkie v Mirkja [2010] FamCA 667 …. 7.49 Wilkinson-Beards & Wilkinson-Beards (1985) FLC ¶91-647 …. 15.4 Williams, Marriage of (1984) 9 Fam LR 789; FLC ¶91-541 …. 13.21, 14.55 Williams v Child Support Registrar (2009) 109 ALD 343 …. 11.56 — v Williams [1964] AC 698 …. 1.32, 1.33 Williams & Williams [2007] FamCA 313 …. 14.46

Williams and Williams (1985) FLC ¶91-628 …. 14.55 Williamson & Williamson (1978) 4 Fam LR 355; FLC ¶90-505 …. 10.19 Willis, Ex parte (1997) 21 Fam LR 479; FLC ¶92-725 …. 5.37, 5.39, 5.43 Wilson v Roberts (No 2) [2010] FamCA 734 …. 7.21 Wilson v Wilson (1994) FLC ¶92-498 …. 15.33 — v — [2010] FMCAfam 436 …. 6.70, 6.81 Wilson & Wilson (1989) 13 Fam LR 205; FLC ¶92-033 …. 10.23, 10.26 Winston & Winston (No 2) [2013] FamCAFC 147 …. 13.31 Wirth v Wirth (1956) 98 CLR 228 …. 12.15, 13.11 Wolford & Attorney-General’s Department (Cth) [2104] FamCAFC 197 …. 8.157 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 …. 14.4 Woodland v Rodriguez [2004] NSWSC 1167 …. 10.54 Woolley v Carney (2005) 33 Fam LR 294 …. 11.81 Woolley & Woolley (No 2) (1981) FLC ¶91-011 …. 10.27 Wreford & Caley (2010) 43 Fam LR 1; [2010] FamCAFC 21 …. 10.37, 11.17

X X, Marriage of (1983) 8 Fam LR 793; FLC ¶91-306 …. 5.66 Xuereb & Xuereb (1976) 1 Fam LN 9; FLC ¶90-029 …. 6.66, 6.69

Y Y v Austin Health (2005) 13 VR 363 …. 7.30 Yamada & Cain [2013] FamCAFC 64 …. 9.61 Yarwood v Shore [2013] FCCA 2219 …. 15.67 Yousseff & Youseff [1995] FamCA 102 …. 15.74

Z Z, Re [1970] 15 FLR 420 …. 5.37, 5.38, 5.41 Z, Re (1996) 20 Fam LR 651; FLC ¶92-694 …. 8.55 Z (No 2), Re (1996) 20 Fam LR 743; FLC ¶92-708 …. 3.52, 8.66 Zabaneh, Marriage of (1986) 11 Fam LR 167; FLC ¶91-766 …. 8.105, 8.107 Zafiropoulos v Secretary of the Department of Human Services State Central Authority (2006) 35 Fam LR 489; FLC ¶93-264 …. 8.157, 8.158 Zanda & Zanda [2014] FamCAFC 173 …. 8.91 Zappacosta, Marriage of (1976) 2 Fam LR 11,214; FLC ¶90-089 …. 14.12 Zau v Huang [2015] FamCA 873 …. 5.26, 5.80, 6.108 — v Uong [2013] FamCA 347 …. 5.101

Zegarac v Tomasevic (2003) DFC ¶93-278 …. 5.95 ZN v YH & Child Representative (2002) 29 Fam LR 20; FLC ¶93-101 …. 9.43, 9.45 Zorbas & Zorbas (1990) 14 Fam LR 226; FLC ¶92-160 …. 13.21 Zotkiewicz v Commissioner of Police (No 2) (2011) 252 FLR 139; FLC ¶93-472; [2011] FamCAFC 147 …. 8.154 ZP v PS; PS, Re; Ex parte ZP (1994) 17 Fam LR 600; FLC ¶92-480 …. 8.160 Zubcic, Marriage of (1995) FLC ¶92-609 …. 14.12, 14.55 Zyk & Zyk (1995) 19 Fam LR 797; FLC ¶92-644 …. 14.54

TABLE OF STATUTES ___________________________

References are to paragraph numbers

Commonwealth Acts Interpretation Act 1901 s 2C …. 15.18 s 15A …. 4.38 s 36 …. 6.72 s 36(1) …. 6.115 Administrative Decisions (Judicial Review) Act 1977 …. 5.41, 5.43 Australian Consumer Law …. 4.84 s 18 …. 4.84 s 29 …. 4.84 Australian Human Rights Commission Act 1986 s 46MB …. 8.2 Bankruptcy Act 1966 …. 15.61, 15.65 Bankruptcy and Family Law Legislation Amendment Act 2005 …. 15.28, 15.62 s 3 …. 15.48 s 22 …. 10.21 Sch 1, ss 9–17 …. 10.25 Sch 1, s 23 …. 10.25 Sch 1, s 24 …. 10.32 Sch 1, s 27 …. 14.66 Sch 5(4) …. 15.48 Child Support (Assessment) Act 1989 …. 7.9, 7.26, 10.25, 10.63, 11.1, 11.4, 11.39, 11.44, 11.50, 11.61, 11.63, 11.65, 11.66, 11.74, 11.78, 11.79, 11.89–11.91, 13.12, 13.13, 14.63, 15.46 Pt 5 …. 11.71

Pt 6 …. 11.90 Pt 6, Divs 2-3 …. 15.46 Pt 6, Div 3 …. 11.91 Pt 6A …. 11.74, 11.84 Pt 6A, Div 2 …. 11.75 Pt 6A, Div 3 …. 11.75 Pt 7 …. 11.4 Pt 7, Div 3 …. 11.74 Pt 7, Div 4 …. 11.74, 11.85, 11.91 Pt 7, Div 5 …. 11.86 s 3 …. 11.62, 11.75 s 4 …. 11.32, 11.62 s 4(2) …. 11.62 s 4(3) …. 11.62 s 4(3)(a) …. 11.89 s 5 …. 7.25, 11.35, 11.63, 11.65, 11.93 s 7A(3)(a) …. 11.70 s 7B(1) …. 11.64 s 12 …. 11.93 s 12(1)(a) …. 11.93 s 12(1)(b) …. 11.93 s 12(1)(c) …. 11.93 s 12(1)(d) …. 11.93 s 12(1)(e) …. 11.93 s 12(1)(f) …. 11.93 s 12(2) …. 11.93 s 12(2AA) …. 11.93 s 12(2A) …. 11.93 s 12(3) …. 11.93 s 12(3)(a) …. 11.93 s 12(3A) …. 11.93 s 18 …. 11.63 s 22 …. 11.93 s 24 …. 11.5, 11.63, 11.68 s 24(1)(b) …. 11.64 s 24(2) …. 11.64 s 25 …. 11.5, 11.64, 11.68 s 25(b) …. 11.64

s 25A …. 11.64, 11.68 s 27 …. 11.68 s 29 …. 7.26, 11.68 s 29(1) …. 11.68 s 29(2) …. 7.26, 11.68 s 29(2)(a)–(i) …. 7.9 s 29(2)(b) …. 7.26 s 29(2)(c) …. 11.68 s 29(2)(i) …. 7.26 s 29A …. 11.64 s 30 …. 11.69 s 30A …. 11.64 s 31 …. 11.69 s 33(1) …. 11.69 s 34(1) …. 11.69 s 35 …. 11.72 s 35C …. 11.72 s 36 …. 11.72 s 44 …. 11.77 s 55C …. 11.72 s 60 …. 11.73 s 63AA …. 11.73 s 63AA(4) …. 11.73 s 64 …. 11.73 s 64AF …. 11.73 s 66F(1)(b) …. 11.64 s 74 …. 11.93 s 80C(2) …. 11.90 s 80CA …. 11.90 s 80D …. 11.90 s 80E(1) …. 11.90 s 80G(1)(d) …. 11.90 s 80G(1)(e) …. 11.90 s 81 …. 11.90 s 84 …. 11.90 s 84(5) …. 11.90 s 88 …. 11.91 s 92 …. 11.91

s 93 …. 11.91 s 98C …. 10.63 s 98E …. 11.74 s 98F …. 11.79 s 98J …. 11.79 s 98J(2) …. 11.85 s 98L(1) …. 11.75 s 98R …. 11.74 s 107 …. 11.66, 11.68 s 116(1) …. 11.74 s 117 …. 10.63, 11.75, 11.85 s 117(1) …. 11.75 s 117(1)(b)(i) …. 11.75 s 117(1)(b)(ii)(A) …. 11.75 s 117(1)(b)(ii)(B) …. 11.75 s 117(2) …. 11.75, 11.76 s 117(2)(a) …. 10.63, 11.77, 11.78, 11.80 s 117(2)(a)(i) …. 11.35 s 117(2)(a)(iii)(B) …. 11.78 s 117(2)(a)(iv) …. 11.80 s 117(2)(aa) …. 11.77, 11.78 s 117(2)(b) …. 11.80 s 117(2)(b)(i) …. 11.80 s 117(2)(c) …. 11.81 s 117(2)(c)(iii) …. 11.78, 11.81 s 117(2)(c)(iv) …. 11.78 s 117(2B) …. 11.80 s 117(2C) …. 11.80 s 117(3A) …. 11.80 s 117(3B) …. 11.80, 11.83 s 117(4) …. 11.75, 11.76 s 117(4)(a) …. 11.75 s 117(5) …. 11.75 s 117(6)–(9) …. 11.75 s 117(7B) …. 11.75 s 117(7B)(c) …. 11.83 s 118 …. 11.84 s 118(4) …. 11.89

s 123 …. 11.86 s 123(2) …. 11.86 s 123(2)(a) …. 11.86 s 123(3) …. 11.86 s 124 …. 11.86, 11.87 s 124(1) …. 11.87 s 124(2) …. 11.87 s 124(5) …. 11.87 s 126(2) …. 11.89 s 136 …. 11.90, 11.92 s 141 …. 11.84 s 142 …. 11.93 s 143 …. 11.29, 11.66, 11.67 s 143(1)–(3A) …. 11.66 s 143(3A) …. 11.66 s 143(3B) …. 11.66 s 150A …. 11.68 s 151B …. 11.93 s 152 …. 15.46 Child Support Legislation Amendment Act 1992 …. 11.74 Child Support Legislation Amendment Act 1998 …. 11.70 Child Support (Registration and Collection) Act 1988 …. 10.39, 11.1, 11.39, 11.48, 11.49, 11.53, 11.54 Pt IV, Div 3 …. 11.57 Pt V …. 11.58 Pt VI, Div 2 …. 11.59 s 3(1) …. 11.49 s 3(2) …. 11.49 s 4(1) …. 11.57 s 5 …. 11.50 s 10 …. 11.48 s 13 …. 11.48 s 17 …. 11.51 s 17A …. 11.51 s 18 …. 11.51 s 18A …. 11.51 s 23 …. 11.51 s 23(4) …. 11.52

s 24 …. 11.51 s 24A(1) …. 11.51 s 30 …. 11.53 s 30(3) …. 11.53 s 30A …. 11.53, 11.55 s 38A …. 11.53 s 38B(1) …. 11.53 s 44 …. 11.57 s 44(1) …. 11.57 s 46 …. 11.57 s 46(4) …. 11.57 s 47 …. 11.57 s 57 …. 11.57 s 58 …. 11.57 s 59 …. 11.57 s 61 …. 11.57 s 66 …. 11.58 s 71A …. 11.81 s 71B …. 11.81 s 71C …. 11.81 s 72A …. 11.55 s 72A(1)(g) …. 11.55 s 72AA …. 11.55 s 72AB …. 11.55 s 72AC …. 11.55 s 72B …. 11.55 s 72C …. 11.55 s 72C(3) …. 11.55 s 72C(4) …. 11.55 s 72D …. 11.56 s 72D(1)(b) …. 11.56 s 72D(1)(c) …. 11.56 s 72D(1)(d) …. 11.56 s 72D(2) …. 11.56 s 72F …. 11.56 s 72M(1) …. 11.56 s 73 …. 11.59 s 74 …. 11.59

s 76 …. 11.59 s 113 …. 11.54 s 113(1)(c) …. 11.54 Child Support (Registration and Collection) Regulations 1988 reg 3 …. 11.57 Civil Dispute Resolution Act 2011 …. 2.27 s 3 …. 2.26 Competition and Consumer Act 2010 Sch 2 see Australian Consumer Law Constitution …. 1.35, 1.39, 1.40, 1.45, 1.61, 1.62, 3.7, 4.1–4.3, 4.8–4.11, 4.22, 4.24, 4.28, 4.30, 4.39, 4.53, 4.69, 4.71, 4.75, 4.80, 4.82, 4.89, 4.100, 4.113 Ch III …. 4.60, 4.99, 4.114 s 51 …. 1.35, 4.2, 4.6, 4.89 s 51(xx) …. 15.24 s 51(xxi) …. 1.35, 4.2, 4.3, 4.6, 4.10, 4.14, 4.17, 4.37, 4.47, 4.61, 4.89, 5.19, 5.85, 10.18, 12.33, 15.16 s 51(xxii) …. 1.35, 4.2, 4.6, 4.8, 4.10, 4.14, 4.21, 4.24, 4.25, 4.37, 4.44, 4.47, 4.61, 4.89, 12.37, 15.16 s 51(xxxi) …. 15.22, 15.23 s 51(xxxvii) …. 4.89, 4.100, 15.16 s 51(xxxix) …. 1.35, 4.2, 4.44, 4.45, 4.100 s 71 …. 4.32 s 75 …. 4.67 ss 75–77 …. 4.67 s 76 …. 4.67 s 77(iii) …. 1.38, 1.44, 4.32, 4.71 s 92 …. 9.121 s 109 …. 3.23, 4.17, 4.60, 4.85, 7.23, 7.33, 8.110, 8.121 s 116 …. 9.73 s 122 …. 1.45, 4.71, 4.113 Corporations Act 1989 …. 4.101 Courts (Mediation and Arbitration) Act 1991 …. 2.2 Diplomatic Privileges and Immunities Act 1967–73 …. 12.39 Domicile Act 1982 …. 4.110 s 9 …. 4.110 s 11 …. 4.110 Evidence Act 1995 …. 2.47, 5.99, 8.68, 8.69, 9.113 s 8 …. 9.113 s 131 …. 2.59

s 131(1) …. 2.49 s 138 …. 2.47 s 140 …. 3.20, 9.108 s 144(1) …. 9.20 s 144(2) …. 9.20 s 144(4) …. 9.20 Evidence Amendment (Journalists’ Privilege) Act 2007 …. 8.66 Family Court Amendment Act 1997 Pt 5A …. 12.22 Family Law Act 1975 …. 1.12, 1.13, 1.27, 1.40, 1.42, 1.44–1.46, 1.48, 1.53, 1.57, 1.64, 1.71, 1.74, 1.77–1.79, 2.2, 2.3, 2.10, 2.57, 3.2–3.4, 3.13, 3.15, 3.20, 3.23, 3.26, 3.39, 3.42, 4.1, 4.21, 4.28–4.30, 4.32–4.44, 4.46–4.49, 4.51, 4.54, 4.55, 4.60, 4.61, 4.67, 4.68, 4.70–4.73, 4.75–4.77, 4.79, 4.80, 4.82, 4.90, 4.98, 4.103, 4.108, 4.109, 4.111–4.113, 4.116, 4.117, 4.119, 4.120, 4.129, 5.2, 5.9, 5.86, 5.88–5.93, 5.95, 5.97, 5.99, 5.101, 5.102, 5.104, 5.105, 5.113–5.116, 5.119, 6.1, 6.3–6.5, 6.7, 6.10, 6.11, 6.13, 6.18, 6.27, 6.33, 6.48, 6.55, 6.57, 6.58, 6.63, 6.66, 6.68, 6.71, 6.79, 6.82, 6.87, 6.88, 6.94, 6.95, 6.104, 6.110–6.113, 6.115, 6.119, 6.122, 6.124, 7.6–7.8, 7.10, 7.14, 7.17, 7.19, 7.20, 7.23, 7.35, 7.39, 7.45, 7.51–7.53, 7.55, 7.56, 7.58, 8.1, 8.4, 8.5, 8.8, 8.13, 8.16, 8.21, 8.22, 8.25, 8.26, 8.40, 8.42, 8.44, 8.46, 8.51, 8.55–8.57, 8.63–8.65, 8.68, 8.70, 8.72, 8.74, 8.77, 8.80, 8.89, 8.90, 8.101, 8.106, 8.125, 8.132, 8.147, 8.149, 9.1, 9.3, 9.9, 9.12, 9.14, 9.26, 9.27, 9.29, 9.33, 9.40, 9.46, 9.50, 9.51, 9.59, 9.60, 9.64, 9.65, 9.82, 9.85, 9.88, 9.93–9.96, 9.100, 9.104, 9.113, 9.115, 9.116, 9.121, 9.124, 9.127, 10.3, 10.11, 10.12, 10.14, 10.15, 10.17, 10.18, 10.20–10.23, 10.25, 10.26, 10.33, 10.34, 10.39, 10.40, 10.44, 10.45, 10.47, 10.49–10.52, 10.55, 10.61, 10.62, 11.1, 11.2, 11.9, 11.14, 11.18, 11.26, 11.29, 11.30, 11.39, 11.44, 11.54, 11.82, 11.85, 11.86, 11.90, 12.2, 12.7, 12.21, 13.1, 15.17, 15.35, 15.41, 15.42, 15.45, 15.63, 15.65 Ch 7 …. 11.68 Pt II …. 2.4, 2.5, 2.55, 2.58, 2.59, 2.63, 2.66 Pt II, Div 2 …. 2.4, 2.5, 2.55, 2.60 Pt II, Div 3 …. 2.4, 2.5, 2.15 Pt II, Div 4 …. 2.4, 2.5, 2.23 Pt III …. 2.4, 2.44 Pt IIIA …. 2.4 Pt IIIB …. 2.4, 2.55 Pt IIIB, Div 4 …. 2.23 Pt V …. 6.88 Pt VII …. 1.74, 1.76, 2.28, 2.31, 3.6, 3.17, 3.24, 3.52, 4.61, 4.63, 4.67, 4.68, 4.111, 7.6, 8.1, 8.4, 8.9, 8.12, 8.13, 8.17, 8.35, 8.40–8.42, 8.44, 8.48, 8.56, 8.68, 8.69, 8.87, 8.94, 8.100, 8.107, 8.109, 8.111, 8.113, 8.116, 8.125, 8.130, 8.132, 8.144, 8.145, 9.1, 9.3, 9.18, 9.22, 9.26, 9.27, 9.30, 9.60, 9.61, 9.81, 9.82, 9.89, 9.100, 9.113, 9.118, 11.4, 11.24, 14.38

Pt VII, Div 1, Subdiv E …. 2.28 Pt VII, Div 3 …. 2.55 Pt VII, Div 5 …. 8.45 Pt VII, Div 6 …. 4.60, 4.121, 8.53, 11.24 Pt VII, Div 6, Subdiv B …. 8.53 Pt VII, Div 6, Subdiv E …. 8.143 Pt VII, Div 7 …. 10.27, 11.8, 11.24, 11.75 Pt VII, Div 8, Subdiv B, ss 67N–67G …. 10.62 Pt VII, Div 8, Subdiv C …. 8.94, 8.146 Pt VII, Div 11 …. 3.24, 8.109–8.111, 9.31 Pt VII, Div 12, Subdiv D …. 7.8 Pt VII, Div 12, Subdiv E …. 7.10, 7.12, 8.45, 8.67 Pt VII, Div 12, Subdiv F …. 8.16 Pt VII, Div 12A …. 8.69 Pt VII, Div 13 …. 8.140 Pt VII, Div 13A …. 4.115, 8.41, 8.46, 8.129, 8.142 Pt VII, Div 13A, Subdiv C …. 8.131, 8.133 Pt VII, Div 13A, Subdiv D …. 8.131 Pt VII, Div 13A, Subdiv E …. 8.131 Pt VII, Div 13A, Subdiv F …. 8.130, 8.131, 8.136, 8.140 Pt VIIB …. 12.22 Pt VIII …. 1.79, 2.23, 5.26, 6.106, 6.124, 10.36, 10.51, 10.57, 12.15, 12.30, 12.33, 13.1, 14.10, 14.37–14.39, 15.37, 15.42, 15.49, 15.55, 15.56 Pt VIIIAA …. 4.47, 12.41, 12.42, 13.11, 15.17, 15.18, 15.20, 15.22–15.26, 15.30 Pt VIIIA …. 2.23, 10.25, 11.15, 15.23, 15.40, 15.42, 15.43, 15.45, 15.47, 15.48, 15.59 Pt VIIIAB …. 2.23, 5.93, 5.96, 5.98, 5.104, 5.114, 6.3, 6.114, 6.115, 6.122, 6.124, 10.30, 10.31, 10.47, 10.48, 10.51, 10.52, 10.54, 10.57, 12.21, 12.22, 12.36, 12.44, 12.45, 13.1, 13.13, 14.38, 14.39, 15.3, 15.18, 15.37, 15.43, 15.45, 15.46 Pt VIIIAB, Div 2 …. 6.124 Pt VIIIAB, Div 4 …. 5.93, 15.42 Pt VIIIB …. 2.23, 15.3, 15.4, 15.6, 15.7, 15.46, 15.50, 15.61 Pt XIII …. 4.115, 11.4 Pt XIIIA …. 3.20, 4.115, 8.128, 10.39 Pt XIIIB …. 3.20, 10.39 Pt XIV …. 3.17 Pt XIX …. 3.11 s 4 …. 3.47, 4.29, 6.110, 7.17, 7.19, 8.109, 10.25, 11.7, 11.28, 12.37, 14.9, 15.18, 15.27, 15.44 s 4(1) …. 2.61, 2.62, 3.3, 3.9, 3.38, 3.39, 4.35, 4.37, 4.111, 5.91, 5.99, 6.3, 6.4, 6.7,

6.20, 6.43, 6.96, 6.104, 6.117, 6.124, 6.126, 8.23, 8.26, 8.45, 8.46, 8.54, 8.56, 8.82, 8.129, 9.30, 9.72, 9.127, 10.18, 10.62, 12.29, 12.34, 12.43, 13.19, 15.10, 15.42 s 4(1)(a) …. 4.111, 6.12, 13.20 s 4(1)(a)–(e) …. 4.108 s 4(1)(b) …. 4.111, 6.20, 6.107, 13.20 s 4(1)(c) …. 13.3 s 4(1)(c)(iii) …. 4.34, 4.35 s 4(1)(ca) …. 12.29, 12.30, 12.32, 13.3 s 4(1)(ca)(i) …. 4.43, 4.47, 12.32, 12.33, 12.36–12.38 s 4(1)(ca)(ii) …. 4.38, 12.33, 12.37 s 4(1)(ca)(iii) …. 12.33, 12.38 s 4(1)(caa) …. 13.3 s 4(1)(cb) …. 13.3 s 4(1)(e) …. 15.13 s 4(1)(eaa) …. 12.30 s 4(1)(f) …. 12.30 s 4(2) …. 12.30 s 4(2)(b) …. 6.106 s 4(2A) …. 12.44 s 4AA …. 5.92–5.94, 5.96–5.98, 5.100, 5.103–5.105, 5.107, 5.108, 5.112, 5.113, 5.117, 6.113, 6.117, 6.119, 7.18, 7.19, 8.53, 11.16, 12.44 s 4AA(1) …. 5.93, 5.94, 5.96, 5.99–5.101, 5.103, 5.104, 5.114, 6.119, 6.122 s 4AA(1)(c) …. 5.94, 5.97, 5.105, 5.113 s 4AA(2) …. 5.95, 5.103, 5.105, 5.108, 5.114 s 4AA(2)(a) …. 5.106, 6.116 s 4AA(2)(b) …. 5.106 s 4AA(2)(c) …. 5.108 s 4AA(2)(d) …. 5.109 s 4AA(2)(e) …. 5.109 s 4AA(2)(f) …. 5.110 s 4AA(2)(g) …. 5.96, 5.112, 5.117 s 4AA(2)(h) …. 5.111 s 4AA(2)(i) …. 5.113 s 4AA(3) …. 5.105 s 4AA(4) …. 5.99, 5.105 s 4AA(5) …. 5.100, 6.123 s 4AA(5)(b) …. 5.104, 5.108 s 4AA(6) …. 5.94

s 4AB …. 1.78, 3.3, 8.157, 9.30 s 4AB(1) …. 3.3, 8.56, 8.109 s 4AB(2) …. 3.3 s 4AB(3) …. 1.78, 3.3 s 5 …. 4.35 s 5(1) …. 4.35, 4.41 s 5(1)(c) …. 4.36, 4.41 s 5A …. 7.17 s 6 …. 5.7, 5.8, 5.68, 6.15, 6.111 s 7 …. 1.45, 4.113 s 8(1) …. 12.31 s 9(1) …. 6.126 s 9(2) …. 6.126 s 9(4) …. 4.34 s 10B …. 2.57, 2.55 s 10C …. 2.55, 2.61 s 10D …. 2.60, 2.61, 2.63, 2.64 s 10D(2) …. 2.60 s 10D(3) …. 2.60, 2.61 s 10D(3)(a) …. 2.61 s 10D(4) …. 2.60, 2.62 s 10D(6) …. 2.62 s 10E …. 2.60–2.64, 3.40 s 10E(2) …. 2.61, 2.62 s 10E(2)(a) …. 2.61 s 10E(2)(b) …. 2.62 s 10F …. 2.8, 2.9, 2.17, 2.64 s 10G …. 2.9 s 10G(1) …. 2.10 s 10G(1)(a) …. 2.10 s 10H …. 2.60, 2.61 s 10H(2) …. 2.60 s 10H(3) …. 2.60 s 10H(4) …. 2.62, 2.63 s 10H(7) …. 2.62 s 10J …. 2.60, 2.62–2.64, 3.40 s 10J(2) …. 2.63 s 10J(2)(b) …. 2.63

s 10L(1) …. 2.24 s 10L(2) …. 2.24 s 11A …. 2.45, 2.46 s 11A(c) …. 2.45 s 11C …. 2.48, 3.40 s 11C(1) …. 2.47 s 11C(2) …. 2.47 s 11C(3) …. 2.47 s 11D …. 2.47 s 11E …. 2.45 s 11F …. 2.46, 2.67, 8.91 s 11G(1A) …. 2.46 s 13A(1)(a) …. 2.56 s 13A(1)(d) …. 2.56 s 13B …. 2.2, 2.56 s 13C …. 2.2, 2.32, 2.49, 2.51, 2.56 s 13C(1) …. 8.53 s 13E …. 2.23, 2.25 s 13G …. 2.23 s 13H …. 2.23 s 13J(1) …. 2.23 s 13J(2) …. 2.23 s 13K(2) …. 2.23 s 14(6) …. 6.88 s 19N …. 2.64, 3.40 s 20 …. 1.45, 4.113 s 21 …. 1.44, 1.45, 4.113 s 21A …. 4.126 s 22(2) …. 1.47, 4.116 s 22(2)(a) …. 1.47 s 22(2)(b) …. 1.47 s 22(2AA)–(2A) …. 4.126 s 22(2A) …. 4.76, 4.117 s 22(2B) …. 4.76 s 28 …. 6.96 s 31 …. 1.45, 4.87, 4.113 s 31(1)(c) …. 4.71 s 33 …. 4.6, 4.83

s 33A(1) …. 4.115 s 33A(2) …. 4.115 s 33B …. 4.115 s 35 …. 8.141 s 38BD …. 2.46 s 39 …. 4.32, 4.37, 4.38, 4.72, 4.111, 4.115, 10.18 s 39(1) …. 6.5 s 39(1A) …. 6.5 s 39(2) …. 6.5 s 39(3) …. 6.6, 6.107 s 39(3)–(4) …. 4.108 s 39(4) …. 4.108, 6.6, 6.107, 6.110 s 39(5) …. 4.72 s 39(6) …. 4.72 s 39(7) …. 4.72 s 40 …. 10.18 s 40(3) …. 4.32, 4.72 s 40A …. 6.5 s 41 …. 1.48, 4.32, 4.73, 4.80, 4.116, 10.18 s 41(1) …. 4.73 s 41(3) …. 6.5 s 41(4) …. 4.73 s 41(4)(a) …. 4.73 s 41(4)(b) …. 4.73 s 41(4)(c) …. 4.73 s 42(2) …. 6.110 s 43 …. 1.74, 3.13, 4.116 s 43(1) …. 1.49 s 43(1)(a) …. 1.49, 1.53, 5.4, 5.10, 6.33 s 43(1)(b) …. 1.49, 1.53 s 43(1)(c) …. 6.58, 6.99, 8.65, 9.95 s 43(1)(ca) …. 1.74, 3.13, 9.29 s 44 …. 4.112 s 44(1A) …. 6.7 s 44(1B) …. 6.88, 6.89 s 44(1C) …. 6.88, 6.89 s 44(3) …. 6.113, 10.18, 13.2–13.5 s 44(3A) …. 10.18

s 44(3B) …. 13.5 s 44(4) …. 10.18, 10.49, 13.4, 13.6 s 44(4)(b) …. 10.35 s 44(5) …. 6.115, 10.52, 13.2, 13.6 s 44(6) …. 6.115, 10.52, 13.6 s 44A …. 6.5 s 46 …. 10.18 s 46(2A) …. 6.5 s 48 …. 1.40, 5.15, 6.8, 6.59, 6.72, 6.85, 6.86, 10.15, 15.48 ss 48–50 …. 6.4 s 48(2) …. 1.40, 6.72 s 48(3) …. 6.8, 6.59, 6.84 s 49 …. 6.59, 6.68, 6.80 s 49(1) …. 6.66 s 49(2) …. 6.60, 6.64, 6.73, 6.80 s 50 …. 6.86 s 50(1) …. 6.68, 6.86, 6.87 s 50(2) …. 6.87 s 51 …. 5.29, 5.30, 6.4, 6.13, 6.108 s 51(3) …. 1.43 s 52 …. 6.4, 6.106 s 55 …. 6.9, 6.91 s 55(1) …. 6.9 s 55(2)(b) …. 6.9 s 55(5) …. 6.103 s 55A …. 4.41, 6.16, 6.91, 6.94, 6.95, 6.97–6.102, 6.126 s 55A(2) …. 6.97, 6.98, 8.93 s 55A(3) …. 6.8, 6.101, 6.102 s 55A(4) …. 6.101 s 56 …. 6.94 s 57 …. 6.68, 6.103 s 58 …. 6.103 s 59 …. 6.16 s 60 …. 11.28 s 60(3)(k) …. 9.30 s 60(9)(b) …. 2.41 s 60B …. 3.3, 7.17, 8.4, 8.9, 8.17, 8.18, 8.25, 8.57, 8.100, 8.111, 8.132, 9.3, 9.26 s 60B(1) …. 8.17, 9.30, 9.82

s 60B(1)(a) …. 8.100, 8.111, 9.22, 9.27 s 60B(1)(b) …. 8.111, 9.100 s 60B(2) …. 8.18 s 60B(2)(a) …. 9.89 s 60B(2)(b) …. 9.60, 9.89, 9.93, 9.96, 9.118 s 60B(2)(d) …. 8.40 s 60B(2)(e) …. 9.81 s 60B(3) …. 8.18 s 60B(4) …. 3.6, 8.4, 8.18 s 60CA …. 3.52, 8.12, 8.46, 8.53, 8.56, 8.63, 8.64, 8.97, 8.98, 8.108, 9.2, 9.96, 9.100, 9.128 s 60CC …. 3.3, 8.63, 8.108, 9.3–9.5, 9.24, 9.26, 9.39, 9.61, 9.63, 9.71, 9.121 s 60CC(1) …. 8.57 s 60CC(1)(a) …. 9.82 s 60CC(2) …. 2.53, 7.57, 8.12, 8.57, 8.94, 9.3, 9.26 s 60CC(2)(a) …. 1.77, 8.100, 8.112, 9.27, 9.60 s 60CC(2)(b) …. 9.28, 9.30, 9.100 s 60CC(2A) …. 1.78, 8.15, 8.57, 8.111, 9.26, 9.28, 9.30, 9.39, 9.100, 9.102, 9.106, 9.107 s 60CC(3) …. 8.12, 8.57, 8.94, 9.3, 9.13, 9.31, 9.55, 9.61, 9.93 s 60CC(3)(a) …. 8.75, 9.13, 9.41, 9.76, 9.93 s 60CC(3)(b) …. 9.13, 9.16, 9.55, 9.71, 9.93 s 60CC(3)(c) …. 1.77, 9.13 s 60CC(3)(d) …. 9.16, 9.46, 9.49, 9.55 s 60CC(3)(d)(ii) …. 9.51, 9.93 s 60CC(3)(e) …. 9.118 s 60CC(3)(f) …. 9.55, 9.63, 9.71 s 60CC(3)(g) …. 9.71, 9.81 s 60CC(3)(h) …. 9.81, 9.85 s 60CC(3)(i) …. 9.63 s 60CC(3)(j) …. 9.28, 9.30, 9.63 s 60CC(3)(k) …. 3.24, 9.28, 9.30 s 60CC(3)(l) …. 8.96 s 60CC(3)(m) …. 9.61, 9.63, 9.71 s 60CC(5) …. 8.57, 8.94 s 60CC(6) …. 9.81, 9.85 s 60CD …. 9.44 s 60CE …. 9.44 s 60CF …. 9.31

s 60CF(1) …. 9.31 s 60CF(2) …. 9.31 s 60CF(3) …. 9.31 s 60CG …. 3.3, 3.24, 8.112, 8.115, 9.31 s 60CG(1) …. 9.31 s 60CG(1)(b) …. 8.112, 9.31 s 60CG(2) …. 9.31 s 60CH …. 3.53 s 60CI …. 3.53 s 60D …. 2.53, 7.20 s 60D(2) …. 2.52 s 60EA …. 5.96, 7.18 s 60EA(a) …. 5.96, 5.112 s 60F …. 8.16, 11.2, 11.34, 11.36 s 60G …. 7.46 s 60H …. 4.60, 5.93, 5.96, 5.103, 5.111, 7.7, 7.17–7.20, 7.23–7.26, 7.46, 7.51, 7.52, 9.62, 11.7, 11.65 s 60H(1) …. 5.96, 6.115, 7.8, 7.18–7.21, 7.23, 7.25, 7.46, 7.54 s 60H(1)(a) …. 5.93 s 60H(1)(b) …. 5.93, 5.103 s 60H(1)(b)(ii) …. 7.17 s 60H(1)(c) …. 7.19 s 60H(1)(d) …. 7.20 s 60H(2) …. 5.107, 7.23, 7.25 s 60H(2)(b) …. 7.17 s 60H(2)(e) …. 4.60 s 60H(3) …. 7.17, 7.23, 7.25, 7.26, 7.52, 7.54 s 60H(5) …. 7.18 s 60HA(1) …. 5.107 s 60HB …. 7.7, 7.45, 7.46, 7.49–7.53, 11.65 s 60I …. 2.10, 2.11, 2.31, 2.33, 2.35, 2.40, 2.50 s 60I(1) …. 2.17, 2.26 s 60I(2)–(6) …. 2.28 s 60I(5) …. 2.29 s 60I(7) …. 2.28, 2.33, 2.41, 8.43 s 60I(8) …. 2.17, 2.30, 2.31 s 60I(8)(a) …. 2.30 s 60I(8)(aa) …. 2.30

s 60I(8)(b) …. 2.30 s 60I(8)(c) …. 2.30 s 60I(8)(d) …. 2.30 s 60I(9) …. 2.28, 2.29, 2.31, 2.33, 2.41 s 60I(9)(d) …. 2.33 s 60I(10) …. 2.31 s 60J(1) …. 2.31 s 60J(2) …. 2.31 s 60J(4) …. 2.31 s 60K …. 3.54 s 61 …. 4.53 s 61(4)(b) …. 4.55 s 61B …. 8.19, 8.21, 8.22 s 61C …. 4.53, 11.1, 11.29 s 61C …. 8.24–8.26, 8.31, 8.39, 8.62 s 61C(1) …. 8.24, 8.28, 9.127 s 61C(2) …. 8.24 s 61C(3) …. 8.25 s 61DA …. 8.35, 8.39, 8.45, 8.53, 8.56, 8.62, 8.104, 9.3, 9.5, 9.21, 9.24, 9.60 s 61DA(2) …. 8.62, 9.6 s 61DA(3) …. 8.62, 8.100 s 61DA(4) …. 8.62, 9.6 s 61F …. 9.81 s 62 …. 8.95 s 62G …. 2.44, 8.90, 8.92, 9.44 s 62G(1) …. 8.90 s 62G(2) …. 8.90, 9.44 s 62G(3A) …. 9.44 s 62G(8) …. 8.90 s 63 …. 4.41, 6.16, 6.94, 6.99 s 63B …. 8.40 s 63C …. 8.40, 11.90 s 63C(1A) …. 2.62 s 63CAA …. 8.40 s 63D …. 8.40 s 63DA …. 2.53, 8.40 s 63DA(1A) …. 2.53 s 63DA(2) …. 2.17, 2.52, 2.53

s 63DA(5) …. 2.52 s 63DB(2) …. 8.40 s 63DB(3) …. 8.40 s 63DB(4) …. 8.40 s 63DB(5) …. 8.40 s 63C(1A) …. 8.41 s 63E …. 8.21, 8.40 s 63F …. 8.31 s 63H(2) …. 8.64 s 64 …. 4.57, 6.105, 8.108, 9.46 s 64(1) …. 8.88 s 64(1)(a) …. 8.64, 9.33 s 64(1)(b) …. 9.43 s 64(1)(va) …. 9.29 s 64(1B) …. 2.57 s 64(4A) …. 8.45 s 64(5) …. 8.95 s 64B …. 8.94, 8.108 s 64B(1) …. 7.12, 8.45, 8.67 s 64B(1)(a) …. 8.98 s 64B(2) …. 2.31, 8.45, 8.50 s 64B(2)(a) …. 8.47 s 64B(2)(c) …. 8.45 s 64B(2)(i) …. 8.45, 9.128 s 64B(3) …. 8.45 s 64B(4) …. 8.45 s 64C …. 7.49, 8.48, 8.51, 8.53, 8.94, 9.55 s 64D …. 3.3, 8.28, 8.41, 8.129 s 64D(3) …. 8.41 s 64DAA(5) …. 9.23 s 64DAA(5)(e) …. 9.23 s 65 …. 6.126, 8.76 s 65B …. 8.53 s 65C …. 7.56, 8.42, 8.53 s 65C(ba) …. 8.42, 9.55, 9.93 s 65C(c) …. 7.49, 7.56, 9.55 s 65D …. 8.53, 8.104, 9.128, 14.62 s 65D(1) …. 4.121, 8.35, 8.45, 8.53

s 65D(2) …. 8.104, 8.106 s 65DA(2) …. 8.56 s 65DAA …. 8.63, 8.100, 9.3, 9.4, 9.9, 9.19, 9.21, 9.49, 9.121, 14.62 s 65DAA(1) …. 8.63 s 65DAA(1)(b) …. 8.63, 9.23 s 65DAA(2) …. 8.63 s 65DAA(2)(d) …. 9.23 s 65DAA(3) …. 8.63, 9.22 s 65DAA(5) …. 8.63 s 65DAA(5)(a)–(d) …. 9.23 s 65DAB …. 2.62, 8.35, 8.41, 8.53, 8.104 s 65DAC …. 8.26, 8.39, 8.101, 9.60 s 65DAC(1) …. 8.26 s 65DAC(2) …. 8.26, 8.27, 9.72, 9.127 s 65DAC(3) …. 8.26, 9.72, 9.127 s 65DAE …. 8.26 s 65E …. 3.52, 8.4, 9.128 s 65F …. 2.57, 8.4 s 65F(2) …. 2.57, 8.53 s 65F(2)(a) …. 2.55 s 65F(2)(b) …. 2.57 s 65F(2)(c) …. 2.57 s 65G …. 8.48, 8.94 s 65G(1) …. 8.48 s 65G(1A) …. 8.48 s 65G(2) …. 8.48 s 65H(1) …. 8.53 s 65H(2) …. 8.53 s 65H(3) …. 8.53 s 65L …. 2.45, 8.95 s 65L(1) …. 8.54 s 65L(2) …. 8.54, 8.64 s 65LA …. 8.54 s 65M …. 8.142 s 65N …. 8.142 s 65NA …. 8.142 s 65Q …. 8.142 s 65Q(1)(c) …. 8.142

s 65Q(1)(d) …. 8.142 s 65Q(2) …. 8.142 s 65Q(3) …. 8.142 ss 65R–65W …. 8.142 s 65X(1) …. 8.143 s 65Y …. 8.143 s 65Y(2) …. 8.144 s 65Z …. 8.143 s 65Z(2) …. 8.144 s 65ZA …. 8.145 s 65ZB …. 8.145 s 66(2) …. 6.91 s 66(2)(a) …. 6.91 s 66(3) …. 6.91 s 66B …. 11.11, 11.13, 11.36, s 66B(1) …. 11.8 s 66B(2)(a) …. 11.8 s 66B(2)(b) …. 11.8, 11.13 s 66C …. 8.28, 11.7, 11.13, 11.34, 11.36, 11.62, 11.75 s 66C(1) …. 11.9 s 66C(2) …. 11.9 s 66C(2)(b) …. 11.9 s 66C(2)(c) …. 11.9 s 66D …. 11.7, 11.13, 11.36 s 66D(1) …. 11.33 s 66D(2) …. 11.33 s 66E …. 11.4, 14.62 s 66E(1)(d) …. 11.25 s 66E(3) …. 11.4 s 66E(5) …. 11.14 s 66F …. 8.42, 11.25 s 66F(1) …. 11.6 s 66F(1)(ba) …. 8.42 s 66G …. 11.24, 11.25, 11.37, 14.62 s 66H …. 11.10, 11.13, 11.24–11.26, 11.28, 11.30 s 66H(1) …. 11.24 s 66H(2) …. 11.24 s 66J …. 11.10, 11.24

s 66J(l)(b) …. 11.11 s 66J(1)(c) …. 11.12 s 66J(2)(a)(i) …. 11.11 s 66J(2)(a)(iii) …. 11.11 s 66J(2)(b) …. 11.11 s 66J(3) …. 11.12 s 66J(3)(b)(ii) …. 11.12, 11.26 s 66K …. 11.10, 11.13, 11.36 s 66K(1)(b)–(e) …. 11.13 s 66K(1)(e) …. 11.25, 11.29 s 66K(2) …. 11.13 s 66K(3) …. 11.13 s 66K(4) …. 11.13 s 66K(4)(a) …. 11.26 s 66K(5) …. 11.14 s 66L …. 8.28, 11.3, 11.6, 11.12, 11.18–11.20, 11.24–11.26, 11.28–11.30, 11.33, 11.38, 11.78, 14.62 s 66L(1) …. 11.18 s 66L(1)(a) …. 11.19 s 66L(1)(b) …. 11.19 s 66L(1)(d) …. 11.19 s 66L(3) …. 11.16, 11.31 s 66M …. 11.34, 11.35 s 66M(1) …. 11.35 s 66M(2) …. 11.35 s 66M(3)(a) …. 11.34 s 66M(3)(b) …. 11.34 s 66M(3)(c) …. 11.34 s 66M(3)(d) …. 11.34 s 66M(3)(e) …. 11.34 s 66N …. 11.36, 11.37 s 66N(a) …. 11.36 s 66N(b) …. 11.36 s 66P …. 11.14 s 66P(1) …. 10.62 s 66P(2) …. 11.15 s 66R …. 11.14, 11.15 s 66S(2) …. 11.15

s 66T …. 11.16 s 66U(1) …. 11.16 s 66U(2) …. 11.16 s 66U(3) …. 11.16 s 66U(4) …. 11.16 s 66U(5) …. 11.16 s 66V(1) …. 11.16 s 66V(2) …. 11.16 s 66VA(1) …. 11.18 s 66VA(2) …. 11.18 s 66VA(3) …. 11.18 s 66W …. 6.102 s 66W(5) …. 7.13 s 66X …. 11.66 s 67B …. 10.62, 11.5 s 67BA …. 3.54 s 67C(1)(a) …. 10.62 s 67C(1)(b) …. 10.62 s 67C(1)(c) …. 10.62 s 67C(2) …. 10.62 s 67C(3) …. 10.62, 10.63 s 67D(1) …. 10.62 s 67D(2)(a)–(j) …. 10.62 s 67E …. 10.62 s 67F …. 8.42, 10.62 s 67G …. 10.62 s 67J(1) …. 8.146 s 67J(2) …. 8.146 s 67K …. 8.42, 8.147 s 67K(1)(ca) …. 8.42 s 67L …. 8.64, 8.147 s 67M …. 8.147 s 67M(5) …. 8.147 s 67N …. 8.147 s 67N(7) …. 8.147 s 67N(9) …. 8.147 s 67P …. 8.147 s 67Q …. 8.148

ss 67Q–67Y …. 8.148 s 67T …. 8.42, 8.148 s 67T(ca) …. 8.42 s 67U …. 8.148 s 67V …. 8.64, 8.148 s 67Z …. 3.54 s 67Z(2) …. 3.54 s 67Z(3) …. 3.39 s 67ZA …. 3.39 s 67ZA(1) …. 3.38 s 67ZA(2) …. 3.38, 3.39 s 67ZA(3) …. 3.39 s 67ZA(4) …. 3.38 s 67ZA(6) …. 3.39 s 67ZB …. 3.39, 3.40 s 67ZB(2) …. 3.39 s 67ZB(3) …. 3.39 s 67ZB(4) …. 3.40 s 67ZBA …. 3.54 s 67ZBA(2) …. 3.54 s 67ZBB …. 3.54 s 67ZC …. 1.64, 4.66–4.68, 8.33, 8.34, 8.42, 8.88, 8.94, 8.116, 8.117, 8.124, 8.125 s 67ZC(1) …. 4.57, 4.66, 8.88, 8.116 s 67ZC(2) …. 8.64, 8.116 s 67ZD …. 8.145 s 67ZH …. 4.67 s 68B …. 3.10, 3.17, 3.19, 3.23, 3.54, 8.42, 9.128 s 68B(1) …. 3.17, 9.128 s 68B(1)(a) …. 3.17 s 68B(1)(b) …. 3.17, 8.94 s 68B(3) …. 3.17 s 68C …. 3.19 s 68C(1) …. 3.17 s 68C(2) …. 3.17 s 68C(3) …. 3.17 s 68F …. 8.107 s 68F(2) …. 8.5, 9.29 s 68L …. 7.10, 8.73, 8.76, 9.44

s 68L(1) …. 8.73 s 68L(2) …. 8.73, 8.76 s 68L(3) …. 8.73 s 68L(4) …. 8.73 s 68LA …. 8.82 s 68LA(2) …. 8.82 s 68LA(3) …. 8.82 s 68LA(4) …. 8.82 s 68LA(5) …. 8.82 s 68LA(5)(b) …. 8.83 s 68LA(6)–(8) …. 8.82 s 68M …. 8.84, 8.89 s 68N …. 3.24, 8.111 s 68P …. 3.24, 8.112, 8.115 s 68P(1) …. 8.110 s 68P(2)(b) …. 8.112 s 68P(2)(c) …. 8.112 s 68P(2)(d) …. 8.112 s 68P(3) …. 8.112 s 68P(4) …. 8.112 s 68Q …. 8.112 s 68Q(1) …. 3.24 s 68Q(2) …. 3.24 s 68R …. 3.24, 3.25, 8.113–8.115 s 68R(1) …. 8.113 s 68R(2) …. 8.114 s 68R(3) …. 3.24 s 68R(3)(a) …. 8.114 s 68R(3)(b) …. 8.114, 8.115 s 68R(4) …. 3.24, 8.114 s 68R(5) …. 8.114 s 68R(5)(b) …. 8.114 s 68R(5)(c) …. 3.25 s 68S(1)(e) …. 8.64, 8.114 s 69B …. 8.125 s 69C …. 8.42 s 69C(1) …. 8.42, 8.42 s 69C(2) …. 8.42

s 69C(2)(c) …. 9.93 s 69E …. 8.44, 11.64 s 69E(2) …. 8.44 s 69H …. 4.111 s 69P …. 7.8 s 69Q …. 7.8 s 69R …. 2.33, 7.8, 7.19, 7.46 s 69S …. 7.8 s 69S(1) …. 7.8 s 69S(1A) …. 7.8 s 69T …. 2.33, 7.8 s 69U(1) …. 7.8 s 69U(2) …. 7.8 s 69V …. 7.10, 7.11 s 69VA …. 7.9–7.11, 7.19, 7.23, 7.49, 7.52–7.54, 11.68 s 69W …. 7.10 s 69W(2) …. 7.10 s 69W(3) …. 7.10 s 69W(5) …. 7.10 s 69X …. 7.10 s 69Y(1) …. 7.13 s 69Y(2) …. 7.13 s 69Z(2) …. 7.14 s 69ZA …. 7.14 s 69ZB …. 7.10 s 69ZC …. 4.47 s 69ZC(1) …. 8.116 s 69ZF …. 11.2 s 69ZH(2) …. 8.116 s 69ZJ …. 8.16 s 69ZK …. 3.17, 3.47, 3.49, 3.52, 3.53, 4.60, 8.16 s 69ZK(1)(a) …. 3.47 s 69ZK(1)(b) …. 3.47, 8.16 s 69ZM …. 8.69 s 69ZN …. 8.69 s 69ZQ …. 8.69 s 69ZT …. 8.69 s 69ZU …. 8.90

s 69ZV …. 8.69, 9.113 s 69ZX …. 8.71 s 69ZX(4) …. 8.64, 8.66 s 69ZW …. 3.52, 3.54 s 70C …. 8.64 s 70NAA(2) …. 8.130 s 70NAC …. 8.129 s 70NAE …. 8.132 s 70NAE(1) …. 8.132 s 70NAE(2) …. 8.132 s 70NAE(4) …. 8.132 s 70NAE(5) …. 8.132 s 70NAE(6) …. 8.132 s 70NAE(7) …. 8.132 s 70NAF(1) …. 8.140 s 70NAF(2) …. 8.140 s 70NAF(3) …. 8.140 s 70NBA …. 8.130, 8.134 s 70NBA(2) …. 8.64, 8.130 s 70NBA(3) …. 8.130 s 70NCA …. 8.46 s 70NCB …. 8.133 s 70NCB(2) …. 8.133 s 70NDB …. 8.134 s 70NDB(2) …. 8.64 s 70NDC …. 8.134 s 70NEA(2) …. 8.135 s 70NEA(3) …. 8.135 s 70NEA(4) …. 8.135 s 70NEB …. 8.135, 8.136 s 70NEB(1)(c) …. 8.135, 8.136 s 70NEB(2) …. 8.135 s 70NEB(4) …. 8.135 s 70NEB(5) …. 8.64, 8.135 s 70NEB(6) …. 8.135 s 70NEB(7) …. 8.135 s 70NFA(2) …. 8.136 s 70NFA(3) …. 8.136

s 70NFA(4) …. 8.136 s 70NFB …. 8.136 s 70NFB(1) …. 8.136, 8.138 s 70NFB(2) …. 8.136, 8.138 s 70NFB(4) …. 8.137 s 70NFB(5) …. 8.137 s 70NFC …. 8.136 s 70NFD …. 8.136 s 70NFE …. 8.136 s 70NFF …. 8.136 s 70NFG(2) …. 8.138 s 70NFG(3) …. 8.138 s 70NJ(6A) …. 8.137 s 71 …. 5.26, 6.106, 12.30 s 71A …. 15.42, 15.51 s 72 …. 4.15, 10.3, 10.20–10.22, 10.24, 10.25, 10.27, 10.36, 10.40, 10.47, 10.49, 11.19, 14.67 s 72(1) …. 10.21, 10.22, 10.24, 10.25, 10.34, 10.56 s 72(1)(a) …. 10.22 s 72(1)(b) …. 10.22 s 72(1)(c) …. 10.22 s 72(2) …. 10.21 s 74 …. 4.121, 10.3, 10.20–10.22, 10.25, 10.27, 10.36, 10.40, 14.62, 14.67 s 74(1) …. 10.25, 10.34 s 74(2) …. 10.25 s 74(2)–(8) …. 10.25 s 74(3) …. 10.25 s 74(4) …. 10.25 s 74(5)–(7) …. 10.25 s 75 …. 10.36 s 75(2) …. 1.79, 10.3, 10.20, 10.22–10.27, 10.30, 10.32, 10.34, 10.36, 10.37, 10.40, 10.45, 10.49, 10.56, 12.28, 13.1, 13.12, 13.13, 13.15, 13.21, 13.26, 13.28, 13.31, 13.39, 14.10, 14.34, 14.38, 14.40, 14.43, 14.44, 14.48, 14.50, 14.53, 14.54, 14.56, 14.58–14.61, 14.64–14.68, 15.4, 15.63, 15.74 s 75(2)(a) …. 10.27 s 75(2)(b) …. 10.27, 10.28, 11.82, 13.22, 14.10, 15.4 s 75(2)(c) …. 10.26 s 75(2)(d) …. 10.30 s 75(2)(e) …. 10.30, 14.15

s 75(2)(f) …. 10.34 s 75(2)(f)(ii) …. 10.28 s 75(2)(g) …. 10.23, 10.26, 10.52, 14.61 s 75(2)(h) …. 10.27 s 75(2)(ha) …. 10.32, 15.63, 15.64 s 75(2)(j) …. 10.26 s 75(2)(k) …. 10.26, 14.59 s 75(2)(l) …. 10.26 s 75(2)(m) …. 10.31 s 75(2)(n) …. 10.29 s 75(2)(na) …. 10.30, 14.63 s 75(2)(o) …. 10.33, 13.13, 13.28, 13.29, 14.13, 14.34–14.36, 14.39, 14.44, 14.65 s 75(2)(p) …. 10.25 s 75(3) …. 10.18, 10.35, 10.50, 10.58 s 77 …. 10.19, 10.58 s 77A …. 10.36, 10.58, 11.14, 14.66 s 78 …. 4.29, 4.88, 12.30, 13.7, 13.9–13.11, 15.21, 15.23, 15.50 s 78(1) …. 13.9 s 78(3) …. 13.11 s 79 …. 4.29, 4.47, 4.86, 4.98, 4.121, 9.24, 10.29, 10.36, 12.23, 12.30, 12.33, 12.34, 12.39, 13.3, 13.5, 13.9, 13.10, 13.12, 13.13, 13.16, 13.19, 13.21, 13.22, 13.25, 13.29, 13.30, 13.36, 13.37, 14.1, 14.8, 14.13, 14.19–14.21, 14.31, 14.34, 14.35, 14.41, 14.42, 14.59, 14.62, 14.66–14.68, 15.7, 15.8, 15.10, 15.16, 15.18, 15.19, 15.23–15.25, 15.28, 15.31, 15.34, 15.50, 15.54, 15.55, 15.59, 15.61, 15.62, 15.65, 15.66, 15.68–15.70, 15.74, 15.75 s 79(1) …. 12.33, 13.1, 13.12, 13.13, 13.19, 14.9, 14.65, 14.66, 15.38 s 79(1)(a) …. 14.66 s 79(1)(b) …. 14.66, 15.63 s 79(1)(c) …. 14.66 s 79(1)(d) …. 12.42, 14.66 s 79(2) …. 13.1, 13.14, 13.16, 13.17, 13.35–13.38, 14.44, 14.65, 15.59, 15.61, 15.64 s 79(4) …. 4.125, 12.4, 12.27, 12.28, 13.1, 13.16, 13.17, 13.29, 13.36, 13.38, 14.1, 14.4, 14.40, 14.42, 14.49, 14.58, 14.59, 15.27 s 79(4)(a) …. 13.14, 14.9, 14.11, 14.24, 14.41 s 79(4)(a)–(b) …. 14.7, 14.9, 14.13 s 79(4)(a)–(c) …. 13.13, 13.39, 14.7, 14.24, 14.34, 14.45, 14.56 s 79(4)(b) …. 13.14, 14.9, 14.12–14.14, 14.41 s 79(4)(c) …. 13.14, 14.9, 14.12–14.14, 14.23, 14.24, 14.38, 14.39, 14.41 s 79(4)(d) …. 13.14, 14.56, 14.57

s 79(4)(d)–(g) …. 13.39, 14.7, 14.56, 14.64 s 79(4)(e) …. 10.25, 10.32, 13.14, 13.39, 14.11, 14.13, 14.34, 14.56, 14.58, 14.67 s 79(4)(e)–(g) …. 13.13 s 79(4)(f) …. 13.14, 14.56, 14.62 s 79(4)(g) …. 13.14, 14.56, 14.63 s 79(5)–(7) …. 13.13, 15.4, 15.27 s 79(7)(b) …. 15.27 s 79(8) …. 4.88, 12.35, 12.36, 14.44 s 79(8)(b) …. 12.36 s 79(9) …. 2.49 s 79(9)(b) …. 2.49 s 79(9)(c) …. 2.49 s 79(11) …. 15.61 s 79(12) …. 15.61 s 79(13) …. 15.61 s 79A …. 2.23, 13.3, 15.10, 15.62, 15.68, 15.70, 15.71, 15.74 s 79A(1) …. 15.69, 15.72 s 79A(1)(a) …. 15.70, 15.71 s 79A(1)(b) …. 15.72 s 79A(1)(c) …. 15.73 s 79A(1)(d) …. 15.74 s 79A(1A) …. 15.75 s 79A(1AA) …. 15.74 s 80 …. 4.87, 13.10, 14.66 s 80(1) …. 10.36, 10.62, 13.12 s 80(1)(a) …. 10.36, 14.66 s 80(1)(b) …. 10.36 s 80(1)(ba) …. 10.36, 14.66 s 80(1)(h) …. 10.19 s 80(1)(j) …. 10.25, 15.37 s 80(2) …. 10.37 s 81 …. 10.3, 10.18, 10.36, 13.2, 13.7, 13.8 s 82 …. 10.38 s 82(4) …. 10.31 s 83 …. 10.36, 10.37, 10.59, 11.15, 15.68 s 83(1) …. 10.37 s 83(2) …. 10.37 s 83(2)(ba) …. 10.37

s 83(2)(c) …. 10.37 s 83(4) …. 10.37 s 83(5) …. 10.37 s 83(7) …. 10.37 s 84(5) …. 15.46 s 85 …. 4.47, 15.23, 15.28–15.32, 15.34 s 85(1) …. 15.34 s 85(3) …. 15.30, 15.32, 15.34 s 85A …. 15.28 s 85A(1) …. 15.27 s 86 …. 15.40 s 86(1A) …. 15.40 s 87 …. 15.40 s 87 …. 4.85, 13.5 s 87(1A) …. 15.40 s 87(4A) …. 10.18, 10.35 s 90 …. 4.46 s 90AA …. 15.18, 15.24 s 90AB …. 15.18 s 90AC …. 15.18, 15.20, 15.22, 15.24 s 90AD …. 15.18 s 90AE …. 15.21, 15.23, 15.24 s 90AE(1) …. 15.19, 15.24 s 90AE(1)(d) …. 15.19, 15.24 s 90AE(2) …. 4.47, 15.19, 15.21, 15.24 s 90AE(2)(a) …. 15.19, 15.24 s 90AE(2)(b) …. 15.19, 15.23, 15.24 s 90AE(3) …. 10.32, 15.20, 15.21, 15.24 s 90AE(3)(a) …. 15.24 s 90AE(3)(c) …. 15.20, 15.24 s 90AE(3)(d) …. 15.24 s 90AE(3)(e) …. 15.24 s 90AE(4) …. 15.20, 15.24 s 90AE(4)(f) …. 15.20 s 90AE(4)(g) …. 15.20 s 90AF …. 15.22–15.24 s 90AF(1) …. 15.22 s 90AF(1)(a) …. 15.22

s 90AF(1)(b) …. 15.22 s 90AF(2) …. 4.47, 15.22, 15.24 s 90AF(2)(a) …. 15.22, 15.24 s 90AF(2)(b) …. 15.22, 15.24 s 90AF(3) …. 15.22 s 90AF(3)(a) …. 15.25 s 90AF(3)(c) …. 15.25 s 90AF(4) …. 15.22 s 90AF(4)(e) …. 15.22 s 90AF(4)(f) …. 15.22 s 90AF(4)(g) …. 15.22 s 90AG …. 15.22 s 90AH …. 15.22 s 90AJ …. 15.22 s 90AK …. 15.21–15.23 ss 90A–90Q …. 15.42 s 90B …. 15.43–15.45, 15.48, 15.56 ss 90B–90D …. 15.42 s 90B(1)(a) …. 15.45 s 90B(1)(aa) …. 15.45 s 90B(2)(a) …. 15.45, 15.48 s 90B(2)(b) …. 15.45 s 90B(3)(a) …. 19.46 s 90B(4) …. 15.45 s 90C …. 15.43–15.45, 15.48, 15.49, 15.54, 15.58 s 90C(1) …. 15.47 s 90C(1)(a) …. 15.45 s 90C(1)(aa) …. 15.45 s 90C(2)(a) …. 15.45, 15.48 s 90C(2)(b) …. 15.45 s 90C(2A) …. 15.43 s 90C(3)(a) …. 15.46 s 90C(4) …. 15.45 s 90D …. 15.43–15.45, 15.48, 15.49, 15.54 s 90D(1) …. 15.47 s 90D(1)(a) …. 15.45 s 90D(1)(aa) …. 15.45 s 90D(2)(a) …. 15.45, 15.48

s 90D(2)(b) …. 15.45 s 90D(3)(a) …. 15.46 s 90D(4) …. 15.45 s 90DA …. 15.47, 15.48 s 90DA(1)–(5) …. 15.48 s 90DA(1A) …. 15.48 s 90DB(1) …. 15.48 s 90DB(2) …. 15.46 s 90E …. 11.15, 15.46, 15.47, 15.60 s 90F …. 11.14, 15.47 s 90G …. 15.42–15.44, 15.51–15.56, 15.58–15.60 s 90G(1) …. 15.55, 15.59, 15.60 s 90G(1)(b) …. 15.56, 15.58 s 90G(1A) …. 15.54–15.56, 15.58, 15.59 s 90G(1A)(c) …. 15.56, 15.58 s 90G(1B) …. 15.54, 15.56 s 90G(5) …. 15.60 s 90GA …. 15.60 s 90GA(2) …. 15.60 s 90GB …. 15.60 s 90H …. 15.47, 15.60 s 90HA …. 15.60 s 90J(2) …. 15.45 s 90K …. 13.5, 15.50 s 90K(1) …. 15.50 s 90K(1)(a) …. 15.50 s 90K(1)(aa) …. 15.50, 15.66 s 90K(1)(b) …. 15.50 s 90K(1)(c) …. 15.50 s 90K(1)(d) …. 15.50 s 90K(1)(e) …. 15.50 s 90K(1)(f) …. 15.50 s 90K(1)(g) …. 15.50 s 90K(1A) …. 15.50 s 90K(2) …. 15.50 s 90K(3) …. 15.50 s 90KA …. 13.5, 15.44, 15.49, 15.50 s 90MA …. 12.22

s 90MC …. 15.10 s 90MD …. 15.6 s 90MH …. 15.12 s 90MH(1) …. 15.46 s 90MH(2)–(5) …. 15.46 s 90MHA …. 15.12 s 90MJ …. 15.12 s 90ML …. 15.12 s 90MN …. 15.12, 15.46 s 90MO …. 15.12 s 90MP …. 15.48 s 90MR …. 15.8 s 90MS …. 15.7 s 90MS(1) …. 15.10 s 90MT …. 12.22, 15.7 s 90MT(1) …. 15.8 s 90MT(1)(a) …. 15.8 s 90MT(1)(b) …. 15.8 s 90MU …. 15.7, 15.9 s 90MU(1) …. 15.9 s 90MU(2) …. 15.9 s 90MZD …. 15.8 s 90RA …. 5.92, 10.55 s 90RA(2)(a) …. 6.124 s 90RC …. 5.93, 10.55, 12.21 s 90RC(2) …. 6.113 s 90RD …. 5.98, 5.101, 5.115 s 90RD(1) …. 5.115 s 90RD(2) …. 5.115 s 90RD(2)(a) …. 5.97, 6.122 s 90RE(1) …. 5.115 s 90RG …. 5.115, 12.45 s 90RH(1) …. 5.115 s 90RH(2) …. 5.115 s 90SA(1) …. 15.51 s 90SB …. 5.114, 5.117, 6.116, 10.52, 12.44 s 90SB(a) …. 5.97, 5.106, 5.115, 6.122, 12.44 s 90SD …. 4.112, 10.55, 12.45

s 90SD(1A) …. 12.45 s 90SE …. 5.93, 5.115, 5.117, 10.56, 10.58, 10.62, 12.22, 13.6, 14.67 s 90SE(1) …. 10.52, 10.56 s 90SF …. 10.47, 10.62, 14.66 s 90SF(1) …. 10.53, 14.67 s 90SF(2) …. 10.56 s 90SF(3) …. 10.56, 10.59, 12.28, 13.12, 13.13, 13.21, 13.29, 13.39, 14.34, 14.50, 14.58, 14.60, 14.64, 14.66, 14.67, 15.63 s 90SF(3)(b) …. 13.22 s 90SF(3)(g) …. 10.52, 14.61 s 90SF(3)(i) …. 15.63 s 90SF(3)(k) …. 14.59 s 90SF(3)(l) …. 10.26 s 90SF(3)(o) …. 10.57 s 90SF(3)(p) …. 10.57 s 90SF(3)(r) …. 13.13, 13.28, 13.29, 14.13, 14.34, 14.36, 14.65 s 90SF(3)(s) …. 10.57 s 90SF(3)(t) …. 10.57 s 90SF(4) …. 10.58 s 90SG …. 5.93, 5.115, 5.117, 10.58, 12.22, 13.6 s 90SH …. 10.58, 14.66 s 90SI …. 10.59 s 90SI(3) …. 10.59 s 90SI(3)(c) …. 10.59 s 90SI(3)(d) …. 10.59 s 90SI(10) …. 10.59 s 90SJ(1) …. 10.60 s 90SJ(2) …. 10.60 s 90SK …. 12.45 s 90SK(1) …. 12.45 s 90SK(1)(b) …. 12.45 s 90SK(1A) …. 12.45 s 90SK(2) …. 12.45 s 90SL …. 5.115, 5.117, 13.6, 13.9–13.11, 15.50 s 90SM …. 5.93, 5.115, 5.117, 12.22, 12.23, 12.28, 13.1, 13.6, 13.9, 13.10, 13.12, 13.19, 13.21, 13.22, 14.1, 14.34, 14.67, 15.7, 15.8, 15.10, 15.16, 15.19, 15.24, 15.50, 15.62, 15.69 s 90SM(1) …. 13.1, 13.12, 13.19, 14.66 s 90SM(1)(b) …. 14.66, 15.63

s 90SM(1)(d) …. 14.66 s 90SM(3) …. 5.102, 13.1, 13.35, 14.44, 14.65, 15.59 s 90SM(4) …. 6.116, 12.4, 12.27, 13.29, 14.1, 14.58 s 90SM(4)(a) …. 5.115, 12.44, 12.45, 14.11, 14.24 s 90SM(4)(a)–(b) …. 14.7, 14.9, 14.13 s 90SM(4)(a)–(c) …. 13.13, 13.39, 14.7, 14.24, 14.34, 14.45, 14.56 s 90SM(4)(b) …. 5.115, 12.44, 12.45, 14.12–14.14 s 90SM(4)(c) …. 5.115, 12.44, 12.45, 14.9, 14.12–14.14, 14.23, 14.24 s 90SM(4)(d) …. 14.57 s 90SM(4)(d)–(g) …. 13.39, 14.7, 14.56 s 90SM(4)(e) …. 13.39, 14.13, 14.34, 14.58 s 90SM(4)(e)–(g) …. 13.13 s 90SM(4)(f) …. 14.62 s 90SM(4)(g) …. 14.63 s 90SM(5)–(7) …. 13.13, 15.4, 15.27 s 90SM(7)(b) …. 15.27 s 90SM(8) …. 12.36 s 90SM(10)(a) …. 14.66 s 90SM(10)(c) …. 14.66 s 90SN …. 15.10, 15.62, 15.68, 15.69 s 90SN(1)(a) …. 15.71 s 90SN(1)(b) …. 15.72 s 90SN(1)(c) …. 15.73 s 90SN(1)(d) …. 15.74 s 90SN(2) …. 15.75 s 90SN(3) …. 15.74 s 90SS …. 5.93 s 90SS(1) …. 13.12, 14.66 s 90SS(1)(a) …. 14.66 s 90SS(1)(c) …. 14.66 s 90SS(1)(j) …. 15.37 s 90SS(1)(k) …. 3.10, 15.13–15.15 s 90SS(5) …. 3.10 s 90ST …. 13.2, 13.7, 13.8 s 90TA …. 12.22, 15.18 ss 90UA–90UM …. 12.22 ss 90UA–90UN …. 10.57 ss 90UA–90WA …. 15.42

s 90UB …. 15.43, 15.48 s 90UB(1)(a) …. 15.45, 15.48 s 90UB(1)(b) …. 15.45 s 90UB(2)(a) …. 15.45 s 90UB(2)(b) …. 15.45 s 90UB(3) …. 15.46 s 90UB(4) …. 15.45 s 90UC …. 15.43, 15.45, 15.48 s 90UC(1)(a) …. 15.45, 15.48 s 90UC(1)(b) …. 15.45 s 90UC(2)(a) …. 15.45 s 90UC(2)(b) …. 15.45 s 90UC(3) …. 15.46 s 90UC(4) …. 15.45 s 90UD …. 15.43, 15.48 s 90UD(1)(a) …. 15.45, 15.48 s 90UD(1)(b) …. 15.45 s 90UD(2)(a) …. 15.45 s 90UD(2)(b) …. 15.45 s 90UD(3) …. 15.46 s 90UD(4) …. 15.45 s 90UE …. 15.42 s 90UF …. 6.114, 15.47, 15.48 s 90UF(1) …. 15.48 s 90UF(1)–(5) …. 15.48 s 90UFA …. 15.47 s 90UH …. 15.46, 15.47, 15.60 s 90UI …. 15.47 s 90UJ …. 15.42, 15.43, 15.51–15.53, 15.56, 15.58, 15.60 s 90UJ(1) …. 15.60 s 90UJ(1A) …. 15.56, 15.58 s 90UJ(3) …. 15.45 s 90UJA …. 15.60 s 90UJA(2) …. 15.60 s 90UJA(5) …. 15.60 s 90UJB …. 15.30 s 90UK …. 15.47, 15.60 s 90UKA …. 15.60

s 90UL(2) …. 15.45 s 90UM …. 15.50 s 90UM(1) …. 15.50 s 90UM(1)(a) …. 15.50 s 90UM(1)(b) …. 15.50, 15.66 s 90UM(1)(d) …. 15.50 s 90UM(1)(e) …. 15.50 s 90UM(1)(f) …. 15.50 s 90UM(1)(g) …. 15.50 s 90UM(1)(h) …. 15.50 s 90UM(1)(i) …. 15.50 s 90UM(1)(k) …. 15.50 s 90UM(2) …. 15.50 s 90UM(4) …. 15.50 s 90UN …. 15.49 s 91(1) …. 15.24 s 91B …. 3.42, 3.47, 3.48 s 91B(2)(b) …. 3.47 s 92 …. 15.16 s 92A …. 3.41 s 92A(2)(d) …. 3.41 s 92A(3) …. 3.41 s 93 …. 6.93, 6.94, 6.96 s 93A …. 4.120 s 94 …. 4.127, 4.128, 6.18, 6.96, 6.103 s 94(3) …. 6.18 s 94(4) …. 6.18 s 94AAA …. 4.127, 4.128 s 94AAA(3) …. 4.127 s 94AAA(6) …. 4.127 s 94AAA(12) …. 4.127 s 94AA …. 4.128 s 94A(1) …. 4.128 s 94A(3) …. 4.128 s 95 …. 4.129 s 96 …. 4.127 s 96(4)(a) …. 4.127 s 96(4)(b) …. 4.127

s 97 …. 4.32, 4.33 s 97(1) …. 4.32 s 97(3) …. 1.46 s 97(4) …. 4.32 s 98A …. 6.8 s 98A(1) …. 6.8 s 98A(2) …. 6.8 s 98A(2A) …. 6.8 s 98A(3) …. 6.8 s 100A …. 8.69 s 102A …. 8.89, 9.114, 9.115 s 102A(3) …. 9.114, 9.115 s 102A(4) …. 9.114 s 102A(5) …. 9.114 s 104 …. 4.108, 6.104, 12.30, 12.38, 13.5 s 104(3) …. 5.71, 12.38 s 104(4) …. 12.38 s 104(5) …. 5.71, 12.38 s 104(8) …. 12.38 s 105 …. 10.39 s 106A …. 2.23, 3.44 s 106B …. 4.47, 4.87, 15.15, 15.23, 15.24, 15.28–15.32, 15.34 s 106B(1) …. 15.31 s 106B(3) …. 15.30, 15.32 s 111B …. 8.149, 8.153 s 111B(1B) …. 8.158 s 111B(4) …. 8.153 s 111B(4)(a) …. 8.153 s 112AD …. 3.20, 8.141 s 112AP …. 3.20, 8.141 s 112AP(1) …. 8.141 s 112AP(1)(b) …. 8.141 s 112AP(4) …. 8.141 s 112AP(6) …. 8.141 s 113 …. 5.115, 6.4, 6.12, 6.15, 6.20, 6.43, 6.93, 6.95, 6.96, 6.107, 6.108 s 114 …. 3.8, 3.14, 3.17, 3.23, 15.13, 15.14, 15.18, 15.22–15.25, 15.29 s 114(1) …. 3.8, 3.9, 3.14, 3.15, 15.13, 15.14, 15.22, 15.25 s 114(1)(a) …. 3.8, 3.14

s 114(1)(b) …. 3.15 s 114(1)(c) …. 3.15 s 114(1)(e) …. 15.14, 15.18 s 114(1)(f) …. 15.14 s 114(2A) …. 3.8, 3.10, 5.93, 3.15, 15.13–15.15 s 114(2A)(b) …. 3.15 s 114(3) …. 3.10, 5.93, 15.13–15.15, 15.22 s 114AA …. 3.17, 3.19 s 114AA(1) …. 3.19 s 114AB …. 3.23 s 114AB(1) …. 3.23 s 114AB(2) …. 3.23 s 117 …. 8.76, 8.132 s 117(3) …. 8.76 s 117(4A) …. 3.47 s 117(5) …. 8.76 s 117AB …. 1.77 s 119 …. 4.69, 11.67 s 120 …. 4.69, 11.67 s 140 …. 5.99 ss 188–193 …. 7.6 Family Law Amendment Act 1976 …. 4.40, 4.76 Family Law Amendment Act 1983 …. 4.43, 4.87, 6.7, 12.32 s 37 …. 10.38 Family Law Amendment Act 1987 …. 4.51, 4.90, 10.18, 10.30, 10.35, 10.36, 11.2–11.4, 11.39, 15.40 s 39(4) …. 4.108 Family Law Amendment Act 1989 …. 3.11, 8.128 Family Law Amendment Act 2000 …. 8.128, 8.137, 15.42 s 3 …. 15.40 Sch 1, s 80 …. 15.28 Sch 2 …. 15.40 Sch 2, s 5 …. 10.25 Sch 2, s 6 …. 15.71 Sch 3, s 74 …. 15.28 Family Law Amendment Act 2003 …. 3.39, 15.16, 15.53, 15.60 s 3 …. 12.41, 13.11, 15.18, 15.43, 15.47 Sch 2 …. 15.43

Sch 5(1) …. 15.47 Sch 6(1) …. 12.41, 13.11, 15.18 Family Law Amendment Act 2004 …. 8.151 Pt VIIIAA …. 4.87 Family Law Amendment Act 2005 …. 6.90 s 3 …. 4.129 Family Law Amendment (Arbitration and Other Measures) Rules 2015 …. 2.25 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 …. 1.57, 4.92, 4.103, 5.91, 5.97, 10.30, 10.31, 10.47, 10.51, 12.21, 12.22 s 2 …. 5.93 s 3 …. 5.91 s 86A …. 6.115 Sch 1 …. 6.115, 6.117, 10.26 Sch 1, Pt 1, cl 3 …. 5.91 Sch 1, Pt 2, item 86 …. 10.52 Sch 1, Pt 2, item 86A …. 5.93, 10.52 Sch 3A …. 7.17, 7.45 Family Law Amendment (Shared Parental Responsibility) Act 2006 …. 1.76, 2.3, 2.14, 2.28, 2.64, 3.2, 8.11, 8.68–8.100, 9.30 Family Law (Child Abduction Convention) Regulations 1986 …. 8.149 Pt 3 …. 8.151 reg 2(1) …. 8.151 reg 2(2) …. 8.153 reg 4(1)(b) …. 8.153 reg 4(2) …. 8.153 reg 6 …. 8.151 reg 10 …. 8.150 reg 11(1) …. 8.150 reg 13(1) …. 8.151 reg 13(4) …. 8.151 reg 14 …. 8.152 reg 14(1) …. 8.152 reg 14(1)(b) …. 8.151 reg 14(2) …. 8.152 reg 15(1) …. 8.155 reg 16(1) …. 8.155 reg 16(2) …. 8.155 reg 16(3) …. 8.155, 8.156 reg 16(3)(a)(i) …. 8.156

reg 16(3)(a)(ii) …. 8.156 reg 16(3)(b) …. 8.157 reg 16(3)(c) …. 8.158 reg 16(3)(c)(ii) …. 8.158 reg 16(3)(d) …. 8.159 Sch 2 …. 8.150 Family Law (Family Dispute Resolution Practitioners) Regulations 2008 …. 2.9, 2.10 Pt 2 …. 2.11 reg 25 …. 2.64 reg 25(2) …. 2.30 reg 28 …. 2.12 reg 29 …. 2.12 reg 30 …. 2.12 Sch 1 …. 2.30 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 …. 2.53, 2.62, 3.6, 3.11, 3.13, 3.27, 3.39, 8.1, 8.4, 8.13, 8.45, 8.90, 9.30 Family Law Legislation Amendment (Superannuation) Act 2001 …. 14.11, 15.3, 15.6 Family Law Reform Act 1995 …. 1.74, 1.75, 2.2, 3.1, 3.11, 3.17, 4.66, 5.42, 8.8, 8.36, 8.64, 8.75, 8.128, 9.29, 9.32, 9.37, 9.90 s 43 …. 3.13 Family Law Regulations 1984 …. 2.23, 5.117, 7.45 Pt IIA …. 7.10 Pt 5 …. 2.23, 2.25 Pt 5, Div 2 …. 2.24 reg 10A …. 6.5 reg 12BC …. 5.117 reg 12C …. 7.17, 7.23 reg 12CA …. 7.17 reg 12CAA …. 7.45 reg 15A …. 4.128 reg 15AB …. 5.117 reg 39B(4) …. 7.8 reg 39BA …. 7.8 regs 67P–67S …. 2.23 Sch 4 …. 7.8 Sch 4A …. 7.8 Family Law Rules 1984 O 33, r 3 …. 11.55

r 2.01 …. 6.4 Family Law Rules 2004 …. 2.13, 2.26, 2.28, 2.34, 6.71, 6.88, 8.90, 10.39, 10.61, 11.54, 13.30 Ch 16A …. 8.70 Ch 20 …. 10.39 Ch 26B …. 2.25 Pt 1, Sch 1, item 1(1)(a) …. 2.13, 2.26, 2.34 Pt 2, Sch 1 …. 2.26 Pt 4.2, Div 4.2.3 …. 8.123, 8.124 Pt 13.1, Div 13.1.2 …. 13.33 Pt 15.5 …. 8.89 Pt 15.5, Div 15.5.2 …. 8.89 Pt 15.5, Div 15.5.5 …. 8.89 r 1.05 …. 2.26, 2.31, 2.34, 2.35 r 1.05(1) …. 2.26 r 1.05(1)(b) …. 2.27 r 1.05(2) …. 2.34 r 1.10(2)(d) …. 2.26, 2.31, 2.35 r 2.04E …. 3.54 r 4.09(2) …. 8.123 r 8.02 …. 8.73 r 8.02(2) …. 8.76 rr 10.15–10.18 …. 15.37 r 12.02 …. 13.30 r 12.03 …. 2.48 r 12.03(4) …. 2.48 r 12.03(5) …. 2.48 r 12.05 …. 2.49, 13.30 r 12.06 …. 2.49 r 12.07 …. 2.49 r 15.03 …. 8.90 r 15.04(c) …. 8.90 r 15.42 …. 8.89 r 15.45(1) …. 8.89 r 15.49 …. 8.89 r 15.51(1) …. 8.89 r 15.51(2) …. 8.89 r 20.30 …. 10.39

Sch 1 …. 2.27, 2.31, 2.36 Sch 1, reg 1(5) …. 2.34 Sch 1, reg 3(1) …. 2.35 Sch 1, reg 3(2) …. 2.35 Sch 1, reg 3(4) …. 2.35 Sch 1, reg 3(5) …. 2.35 Sch 1, reg 3(6) …. 2.35 Dictionary …. 8.124 Family Law (Superannuation) Regulations 2001 …. 15.6 reg 3 …. 15.5 reg 8 …. 15.5 Federal Circuit Court Act 1999 …. 4.114 s 18 …. 4.83 Federal Circuit Court of Australia (Consequential Amendments) Act 2013 …. 4.111, 4.114 Federal Circuit Court of Australia Legislation Amendment Act 2012 …. 4.111, 4.114 Federal Circuit Court Rules 2001 …. 2.26, 2.27 Div 4.2 …. 2.27 r 10.05 …. 2.49 rr 13.04–13.05 …. 15.37 Federal Court of Australia Act 1976 s 32 …. 4.83 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 …. 15.53, 15.60 Federal Magistrates Act 1999 Pt 6, Div 2 …. 4.114 Pt 7, Div 1 …. 4.114 s 4 …. 4.114 s 19 …. 4.115 ss 39–41 …. 4.115 Human Rights and Equal Opportunity Commission Act 1986 …. 1.49 Judiciary Act 1903 s 2 …. 4.23 Judiciary Act 1983 s 79 …. 7.23 s 80 …. 7.23 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.94, 4.101 s 3 …. 4.96

s 5 …. 4.96 s 9 …. 4.96 Law and Justice Legislation (Amendment) Act 1988 …. 13.11 Marriage Act 1961 …. 1.37, 1.45, 1.52, 1.61, 1.62, 4.1, 4.3, 4.9, 4.109, 4.113, 5.13, 5.21, 5.24–5.26, 5.30, 5.43, 5.54, 5.56, 5.57, 6.15, 6.24, 6.35, 6.110 Pt III …. 5.45, 5.119 Pt IV, Div 1, Subdiv A …. 5.54 Pt IV, Div 1, Subdiv B, s 39(1) …. 5.55 Pt IV, Div 1, Subdiv C …. 5.54 Pt IV, Div 2 …. 6.23 Pt IV, Div 3 …. 6.13 Pt V …. 5.58 Pt V, Divs 1–2 …. 5.25 Pt V, Div 3 …. 5.59 Pt V, Divs 3–4, ss 71–88 …. 5.25 Pt VA …. 5.25, 5.59, 5.61, 5.63, 5.68, 5.73 Pt VI …. 4.12 s 5 …. 1.52, 1.61, 4.3, 4.30, 5.47 s 5(1) …. 5.4, 5.13, 5.45, 5.47, 5.54, 6.15, 6.23, 6.43, 6.108 s 5(2) …. 5.119 s 9 …. 5.47 s 9A(1) …. 5.47 s 10(2)(b) …. 5.69 s 11 …. 5.35, 5.69, 6.13, 6.52, 6.53 s 12 …. 5.35–5.38, 5.41, 5.43, 5.44, 5.51, 6.53 s 12(1) …. 5.36 s 12(2) …. 5.37, 5.41, 6.53 s 12(2)(b) …. 5.37, 5.41 s 12(3) …. 5.44 s 12(4) …. 5.37 s 12(5) …. 5.44 s 13(1) …. 5.45 s 14 …. 5.45 ss 14–21 …. 5.45 s 15 …. 5.47, 5.48 s 15(1) …. 5.47 s 15(4) …. 5.47 s 16 …. 5.42, 5.48–5.51

s 16(1) …. 5.47 s 16(2) …. 5.49 s 16(5)–(6) …. 5.49 s 17 …. 5.49 s 18 …. 5.51 s 19(1) …. 5.43 s 19(2) …. 5.43 s 22 …. 5.27, 5.60, 6.13 s 23 …. 1.43, 5.26, 5.27, 6.13, 6.108 s 23(1) …. 6.110 s 23(1)(a) …. 5.5, 5.29, 5.81 s 23(1)(b) …. 5.30 s 23(1)(d)(i) …. 6.33 s 23(1)(d)(ii) …. 6.33 s 23(1)(e) …. 5.44, 5.81 s 23(2) …. 5.30, 5.70, 5.81 s 23A …. 5.27, 5.33, 5.61, 6.13 s 23B …. 1.43, 5.14, 5.26, 5.27, 5.33, 5.61, 5.80, 6.13, 6.14, 6.108 s 23B(1) …. 5.26, 6.25, 6.108, 6.110 s 23B(1)(a) …. 5.5, 5.29, 5.81, 6.13, 6.108 s 23B(1)(b) …. 5.30, 6.13, 6.108 s 23B(1)(c) …. 6.13, 6.24, 6.108 s 23B(1)(d) …. 6.13, 6.108 s 23B(1)(d)(ii) …. 6.33, 6.40, 6.43, 6.44 s 23B(1)(d)(iii) …. 6.45, 6.49 s 23B(1)(e) …. 5.44, 5.81, 6.13, 6.54, 6.108 s 23B(2) …. 5.30, 5.70, 5.81, 6.13, 6.14, 6.21 s 23B(3) …. 6.13, 6.14, 6.21, 6.22 s 23B(5) …. 6.14, 6.21, 6.22 ss 25–38 …. 5.54, 6.24 s 26 …. 5.54 s 27 …. 5.54 s 29 …. 5.54 s 30 …. 5.54 s 31 …. 5.54 s 39(2) …. 5.55, 5.56 s 39A …. 5.54 ss 39A–39M …. 5.54

s 39B …. 5.54 s 39C …. 5.54 s 39C(1)(a)–(c) …. 5.54 s 39C(2)(a)–(h) …. 5.54 s 39G …. 5.54 ss 40–47 …. 6.23 s 41 …. 5.53, 5.56, 6.24 ss 41–46 …. 5.56 s 42 …. 5.81 s 42(1)(a) …. 5.56 s 42(1)(b) …. 5.56 s 42(1)(b)(i) …. 5.29 s 42(1)(c) …. 5.56 s 42(1)(c)(i) …. 5.29 s 42(10) …. 5.56 s 43 …. 5.56 s 44 …. 5.56 s 45 …. 6.24 s 45(1) …. 5.56 s 45(2) …. 5.56 s 46 …. 5.4, 5.10 s 46(1) …. 1.52, 5.56 s 48 …. 5.81, 6.14, 6.24 s 48(1) …. 6.23, 6.24 s 48(2) …. 5.52, 5.81, 6.24 s 48(2)(e) …. 5.56 s 48(2)(f) …. 5.46 s 48(3) …. 5.52, 5.77, 5.82, 6.24 s 50 …. 5.56 s 51 …. 5.80 s 53 …. 5.57 s 54 …. 5.57 s 55(a) …. 5.57 s 55(b) …. 5.57 s 57 …. 5.57 s 58 …. 5.57 s 71 …. 5.59 s 72 …. 5.59

s 83 …. 5.81 s 83(2) …. 5.82 ss 88A–88G …. 5.63 s 88B(3) …. 5.59 s 88B(4) …. 5.73 s 88B(5)(1) …. 5.73 s 88C …. 5.71, 5.72 s 88C(1) …. 5.61, 5.67 s 88C(2) …. 5.67 s 88D …. 5.70–5.72 s 88D(1) …. 5.67 s 88D(2) …. 5.68 s 88D(2)(a) …. 5.8 s 88D(2)(b) …. 5.69 s 88D(2)(c) …. 5.70 s 88D(2)(d) …. 5.70 s 88D(3) …. 5.69 s 88D(4) …. 5.70 s 88D(5) …. 5.70 s 88E …. 5.8, 5.70, 5.73 s 88E(3) …. 5.9 s 88E(4) …. 5.8, 5.9, 5.68 s 88EA …. 1.61, 5.10, 5.73 s 89 …. 1.37, 4.12, 4.14, 4.17, 4.24, 5.39, 5.85, 7.3 ss 89–91 …. 4.12 s 89(1) …. 5.84 s 90 …. 4.12, 4.14 s 91 …. 4.12, 4.17–4.19, 5.82 s 94 …. 4.12 ss 94–106 …. 5.83 s 94(1) …. 5.81 s 94(2) …. 5.29 s 95 …. 5.81 s 95(1) …. 5.81 s 95(2) …. 5.46 s 95(4) …. 5.46, 5.81 s 99(6) …. 5.78 s 100 …. 6.22, 6.24

s 101 …. 5.82 s 103 …. 5.82 s 104 …. 6.22, 6.24 s 111A …. 5.19 s 111A(2) …. 5.20 s 113 …. 5.26, 5.29, 5.78, 5.80, 6.108 s 113(1)(a) …. 5.78 s 113(2) …. 5.79 s 113(3) …. 5.79 s 113(5) …. 5.78 s 113(6) …. 5.78, 5.79 s 113(7) …. 5.78 Sch …. 5.45 Sch, Pt I …. 5.45 Sch, Pt II …. 5.45 Marriage Amendment Act 1973 …. 5.4 Marriage Amendment Act 1976 …. 5.19, 5.42, 5.47, 6.13 s 12 …. 5.30 Marriage Amendment Act 1985 …. 5.8, 5.27, 5.52, 5.61, 6.13 s 13 …. 6.14 s 71 …. 5.27 Marriage Amendment Act 2002 …. 5.25, 5.47, 5.52, 5.58 Marriage Amendment Act 2004 …. 1.52, 1.61, 4.3, 5.4, 5.10 s 3 …. 5.73 Sch 1 …. 5.73 Marriage Regulations 1963 …. 5.83 reg 37G …. 5.54 reg 37L …. 5.54 reg 42 …. 5.56 Sch 1A …. 5.54 Matrimonial Causes Act 1899 …. 6.95 Matrimonial Causes Act 1945 …. 4.10 s 6 …. 4.10 s 11 …. 4.10 s 12A …. 4.10 s 18 …. 4.19 Matrimonial Causes Act 1955 s 5 …. 4.10

Matrimonial Causes Act 1959 …. 1.29, 1.36–1.39, 1.41, 1.42, 4.9, 4.10, 4.25, 4.26, 4.29, 4.34, 4.71, 4.81, 4.82, 4.107, 4.109, 5.6, 5.7, 5.31, 6.9–6.11, 6.55, 6.84, 10.11, 10.12, 10.14, 12.15, 12.16, 12.37 s 5 …. 4.30 s 5(1) …. 4.24, 4.36 s 5(1)(a) …. 4.24 s 5(1)(c) …. 4.26, 4.29, 4.30 s 6A …. 5.7, 6.111 s 18 …. 6.14 s 21 …. 6.10 s 23 …. 4.32 s 23(4)–(5) …. 4.107 s 24(1) …. 4.107 s 24(2) …. 4.107 s 28(m) …. 6.62 s 28(n) …. 6.19 s 41A …. 6.86 s 41A(4) …. 6.87 s 84(1) …. 10.14 s 84(2) …. 10.14 s 86 …. 4.37, 12.15, 12.16 s 86(1) …. 4.26 s 86(2) …. 4.26 s 89(2) …. 4.24 s 89(4) …. 4.24 Sch 2 …. 1.43, 5.31 Matrimonial Causes Act 1965 …. 6.86 s 3 …. 5.7 Matrimonial Causes (Expeditionary Forces) Act 1919 …. 4.10 Matrimonial Causes Rules r 195 …. 4.24 Migration Act 1958 …. 8.4 Prohibition of Human Cloning for Reproduction Act 2002 …. 7.32 Research Involving Human Embryos Act 2002 …. 7.32 Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 …. 5.87 Sex Discrimination Act 1984 …. 5.35, 6.52, 7.33 s 22 …. 7.33 Sex Discrimination Amendment Act 1991 …. 5.35

Social Security Act 1991 …. 5.105, 5.113, 11.60 Social Security and Veterans Entitlements (Maintenance Income Test) Amendment Act 1988 …. 11.60 ss 67–69 …. 11.58 ss 72K–72P …. 11.56 Superannuation Industry (Supervision) Regulations 1994 reg 1.03AB …. 15.5 reg 6.01(2) …. 15.5 reg 6.01(5)(a) …. 15.5 reg 6.01(5A) …. 15.5 Sch 1 …. 15.5 Tribunals Amalgamation Act 2015 …. 11.74

Australian Capital Territory Artificial Conception Act 1985 …. 7.20, 7.39 Children and Young People Act 2008 …. 3.34 Chs 10–19 …. 3.43 s 356 …. 3.37 Civil Partnerships Act 2008 …. 1.62, 5.117, 5.119, 6.126 s 6 …. 5.119 s 7 …. 5.116 s 8 …. 5.116 s 9(1) …. 6.126 s 9(2) …. 6.125 s 10 …. 6.125, 6.126 s 11 …. 6.125 s 19 …. 5.116 Crimes Act 1900 Pt 4 …. 3.29 Domestic Relationships Act 1994 …. 1.59, 5.119, 10.49, 10.54, 12.20 s 3 …. 5.94, 5.118 s 18 …. 10.49 s 19 …. 10.48 s 19(1) …. 10.49 s 19(2) …. 10.49 s 19(3) …. 10.50 s 22 …. 10.49 Domestic Violence and Protection Orders Act 2008 …. 3.22

Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Human Cloning and Embryo Research Act 2004 …. 7.32 Jurisdiction of Courts (Cross-vesting) Act 1993 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Legislation Act 2001 s 169 …. 7.17 Marriage Equality (Same Sex) Act 2013 …. 4.3 Parentage Act 2004 …. 7.5, 7.20, 7.42, 7.43 s 11 …. 7.20 s 11(2) …. 7.20 s 11(3) …. 7.20 s 11(4) …. 7.17 s 11(5) …. 7.20 s 24(d) …. 7.43 s 26(1) …. 7.43 s 26(3) …. 7.43 s 45 …. 7.42

New South Wales Assisted Reproductive Technology Act 2007 …. 7.31, 7.33, 7.35 s 3(b)(i) …. 7.35 s 17 …. 7.29 ss 19–26 …. 7.29 s 23 …. 7.29, 7.30 Children and Young Persons (Care and Protection) Act 1998 …. 3.30, 3.34 Ch 4 …. 3.43 Ch 5 …. 3.43 s 23 …. 3.37 s 27 …. 3.37 s 36(1)(c) …. 3.43 Commonwealth Powers (De Facto Relationships) Act 2003 …. 1.57, 4.92 Commonwealth Powers (Family Law — Children) Act 1986 …. 4.51, 4.90 s 3 …. 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91

s 4 …. 4.91 Corporations (New South Wales) Act 1990 …. 4.101 Crimes Act 1900 s 45 …. 3.29 s 61AA …. 3.28 s 92 …. 4.12 Crimes (Domestic and Personal Violence) Act 2007 …. 3.22 s 42(3)(b) …. 3.24, 3.25 De Facto Relationships Act 1984 …. 1.57, 6.118 Deserted Wives and Children Act 1840 …. 10.10 Family Provision Act 1982 …. 4.85 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Guardianship Act 1987 …. 4.60, 4.63, 4.64, 8.121 Pt 5 …. 4.59, 4.61 s 35(1) …. 4.60 Human Cloning for Reproduction and Other Prohibited Practices Act 2003 …. 7.32 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Married Persons (Equality of Status) Act 1996 s 5 …. 4.69 Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 …. 1.57 Property (Relationships) Act 1984 …. 1.57, 5.89, 7.28, 10.47, 10.49, 10.54, 12.20 s 4 …. 5.100, 6.117 s 4(2) …. 5.95 s 4(2)(h) …. 5.100 s 5 …. 5.118 s 26 …. 10.49 s 27 …. 10.48 s 27(1) …. 10.49 s 27(1)(a) …. 10.49 s 27(1)(b) …. 10.49 s 27(2) …. 10.49 s 27(3) …. 10.50 s 30 …. 10.49 s 53 …. 3.8 Property (Relationships) Legislation Amendment Act 1999 …. 5.94

Relationships Register Act 2010 …. 12.20 Pt 2 …. 5.116 Pt 3 …. 6.126 s 10 …. 6.126 Research Involving Human Embryos (New South Wales) Act 2003 …. 7.32 Status of Children Act 1996 …. 7.5, 7.22, 7.28 s 14 …. 7.20 s 14(1) …. 7.20 s 14(1A) …. 7.17, 7.20 s 14(2) …. 7.20 s 14(3) …. 7.20 Succession Act 2006 …. 13.21 s 95 …. 4.85 Surrogacy Act 2010 …. 7.42, 7.43 s 4 …. 7.44 s 8 …. 7.54 s 11 …. 7.42 s 22 …. 7.43 s 27(1) …. 7.43

Northern Territory Care and Protection of Children Act 2007 …. 3.34, 3.52 Ch 2 …. 3.43 s 15 …. 3.37 s 16 …. 3.37 s 26 …. 3.37 s 67 …. 3.44 s 308 …. 3.52 Community Welfare Act 1983 …. 8.66 Criminal Code Act 1983 Pt VI, Div 4A …. 3.29 De Facto Relationships Act 1991 …. 12.20 s 3A …. 5.94 s 3A(2) …. 5.95 s 24 …. 10.49 s 26 …. 10.48 s 26(1) …. 10.49 s 26(2) …. 10.49

s 26(3) …. 10.50 s 32 …. 10.49 Domestic and Family Violence Act 2007 …. 3.22 s 19(2)(a) …. 3.24 s 90 …. 3.24 s 124A …. 3.22 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Law Reform (Gender Sexuality and De Facto Relationships) Act 2003 …. 5.94 Property (Relationships) Act 1984 ss 4–5 …. 5.94 Status of Children Act 1978 …. 7.5 Pt IIIA …. 7.20 s 5C …. 7.20 s 5DA …. 7.17 s 5F …. 7.20

Queensland Acts Interpretation Act 1954 s 32DA(1) …. 5.94 s 32DA(2) …. 5.95 Child Protection Act 1999 …. 3.34 Ch 2 …. 3.43 Ch 2, Pt 1AA …. 3.37 Civil Partnerships Act 2011 …. 1.58, 5.117, 5.119 Civil Partnerships and Other Legislation Amendment Act 2012 …. 5.119 Commonwealth Powers (De Facto Relationships) Act 2003 …. 4.92 Commonwealth Powers (Family Law — Children) Act 1990 …. 4.51, 4.90, 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91 s 4 …. 4.91 Criminal Code Act 1899 s 323A …. 3.29 s 323B …. 3.29

s 360 …. 4.12 Domestic and Family Violence Protection Act 2012 …. 3.22 s 76 …. 3.24 s 78 …. 3.24 Education (General Provisions) Act 2006 s 364 …. 3.37 s 365 …. 3.37 s 365A …. 3.37 s 366 …. 3.37 s 366A …. 3.37 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Property Law Act 1974 …. 12.20 Pt 19 …. 10.52 ss 260–261 …. 5.94 Property Law Amendment Act 1999 …. 5.94, 12.20 Relationships Act 2011 …. 5.116, 5.119, 12.20 Relationships Act 2012 Pt 6 …. 5.119 Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 …. 12.20 Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 …. 7.32 Status of Children Act 1978 …. 7.5 Pt 3 Div 2 …. 7.20 s 17(2)(b) …. 7.20 s 18(2)(b) …. 7.20 s 19(2)(a) …. 7.20 s 19(2)(d)(ii) …. 7.20 ss 19B–19E …. 7.17 s 19C …. 7.20 s 19D(2) …. 7.20 s 19E(2)(a) …. 7.20 s 19E(4) …. 7.20 s 21(1) …. 7.20 s 22(2) …. 7.20

s 23(2)(a) …. 7.20 s 23(4) …. 7.20 Surrogacy Act 2010 …. 7.42, 7.43, 7.44 s 13 …. 7.44 s 15(2)(b) …. 7.44 s 22(2)(a) …. 7.43 s 22(2)(f) …. 7.43 s 54 …. 7.42

South Australia Action for Breach of Promise (Abolition) Act 1971 …. 5.19 Assisted Reproductive Treatment Act 1988 …. 7.31, 7.33, 7.35, 7.42, 7.43 s 4A …. 7.35 s 9(1)(c) …. 7.33 s 9(1)(c)(iv) …. 7.29, 7.30 Births Deaths and Marriages Registration Act 1996 …. 7.42, 7.43 Children’s Protection Act 1993 …. 3.34 Ch 2, Pt 1AA …. 3.37 Pt 5 …. 3.43 s 43 …. 3.44 Commonwealth Powers (De Facto Relationships Act) 2009 …. 4.92, 10.55 s 2 …. 5.93 s 4(1)(b) …. 10.55 Commonwealth Powers (Family Law — Children) Act 1986 …. 4.51, 4.90 s 3 …. 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91 s 4 …. 4.91 Criminal Law Consolidation Act 1935 Pt 3, Div 8 …. 3.29 s 78 …. 4.12 Domestic Partners Property Act 1996 …. 10.54, 12.20 s 3 …. 5.94 s 3(1) …. 5.118 Family Relationships Act 1975 …. 1.56, 7.5, 7.42, 7.43 Pt 2A …. 7.20 s 10C(1) …. 7.20

s 10C(2) …. 7.20 s 10C(3) …. 7.17 s 10C(4) …. 7.20 s 10HA(2)(b)(iii) …. 7.43 s 10HA(2)(b)(viii) …. 7.43 s 10HB …. 7.44 s 10HB(6) …. 7.43 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Guardianship of Infants Act 1940 …. 4.34 Intervention Orders (Prevention of Abuse) Act 2009 …. 3.22 s 7(1)(b) …. 3.18 s 10(2) …. 3.24 s 10(2)(a) …. 3.25 s 10(2)(b) …. 3.25 s 16(1) …. 3.24 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Law of Property Act 1936 s 105 …. 12.12 Prohibition of Human Cloning for Reproduction Act 2003 …. 7.31, 7.32 Reproductive Technology Act 1988 …. 7.33 Research Involving Human Embryos Act 2003 …. 7.32 Statutes Amendment (Domestic Partners) Act 2006 …. 5.94 Statutes Amendment (Surrogacy) Act 2009 …. 7.42, 7.43

Tasmania Children, Young Persons and Their Families Act 1997 …. 3.34, 4.68 Pt 5 …. 3.43 s 3 …. 3.37 s 4 …. 3.37 s 14 …. 3.37 Commonwealth Powers (De Facto Relationships) Act 2006 …. 4.92 Commonwealth Powers (Family Law) Act 1987 …. 4.51, 4.90, 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91

s 3(4) …. 4.91 s 4 …. 4.91 Criminal Code Act 1924 s 50 …. 3.28 s 178A …. 3.29 s 178B …. 3.29 Family Violence Act 2004 …. 3.22 s 18 …. 3.24, 3.25 s 33 …. 3.24 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Human Cloning for Reproduction and Other Prohibited Practices Act 2003 …. 7.32 Human Embryonic Research Regulation Act 2003 …. 7.32 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Maintenance Act 1967 …. 1.55 s 16(1) …. 1.55 Relationships Act 2003 …. 5.117, 10.54, 12.20 Pt 2 …. 5.116 Pt 3 …. 5.116 ss 4–5 …. 5.94 s 4(3) …. 5.95 ss 5–6 …. 5.118 s 11 …. 5.116 ss 11–18 …. 5.116 s 15(1) …. 6.126 ss 16–17 …. 6.125, 6.126 s 18 …. 6.126 ss 19–30 …. 5.116 ss 36–38 …. 1.55 s 38(2) …. 10.49 s 46 …. 10.49 ss 46–53 …. 1.55 s 47 …. 10.48 s 47(1) …. 10.49 s 47(2) …. 10.49 s 47(3) …. 10.50

Relationships Act 2008 …. 5.118 Status of Children Act 1974 …. 7.5 Pt III …. 7.20 s 10C …. 7.17 s 10C(2) …. 7.20 s 10C(3) …. 7.20 s 10C(4) …. 7.20 s 15 …. 7.23 Surrogacy Act 2012 …. 7.43 s 4 …. 7.44 s 13 …. 7.44

Victoria Adoption Act 1984 s 11(l)(b) …. 5.9 Assisted Reproductive Treatment Act 2008 …. 7.30, 7.31, 7.33, 7.35, 7.42, 7.43 s 5(a) …. 7.35 s 10 …. 7.33 s 11 …. 7.35 s 12 …. 7.35 s 14 …. 7.35 s 14(1)(b) …. 7.36 s 14(2) …. 7.36 s 14(3) …. 7.36 s 15 …. 7.35 s 16 …. 7.29 s 17 …. 7.29 ss 20–22 …. 7.29 s 22(1) …. 7.43 s 30 …. 7.29 ss 32–34 …. 7.29 s 36 …. 7.29 s 40(1)(b) …. 7.43 s 44 …. 7.42 s 44(1) …. 7.54 s 46 …. 7.29, 7.30 s 47 …. 7.30 s 85 …. 7.35

Children, Youth and Families Act 2005 …. 3.34 Ch 4 …. 3.43 s 162(c)–(d) …. 3.37 s 182(1)(a)–(e) …. 3.37 s 184 …. 3.37 Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 …. 3.44 Commonwealth Powers (De Facto Relationships) Act 2004 …. 4.92 Commonwealth Powers (Family Law — Children) Act 1986 …. 4.51, 4.90 s 3 …. 10.62 s 3(1)(a) …. 4.91 s 3(1)(b) …. 4.91 s 3(2) …. 4.91 s 4 …. 4.91 Crimes Act 1958 ss 32–34A …. 3.29 s 64 …. 4.12 Crimes (Family Violence) Act 1987 …. 3.23 Family Violence Protection Act 2008 …. 3.22 s 5(1)(b) …. 3.18 s 8(1)(d)–(e) …. 3.18 s 80 …. 3.25 s 89 …. 3.24 s 90 …. 3.24 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Infertility (Medical Procedures) Act 1984 …. 7.31 Infertility Treatment Act 1995 …. 7.30, 7.31, 7.33 s 12(3) …. 7.30 s 43(a) …. 7.30 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101 s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Maintenance Act 1965 s 3(1) …. 4.30 Marriage Act 1928 …. 4.26 Marriage Act 1958 …. 12.15 s 160 …. 4.69

s 161(4)(b) …. 12.15 Prohibition of Human Cloning for Reproduction Act 2008 …. 7.32 Relationships Act 2008 …. 5.117, 10.54, 12.20 Pt 2.2 …. 5.116 Pt 2.3 …. 5.116 ss 6–16 …. 5.116 s 11(1) …. 6.126 ss 12–15 …. 6.126 ss 12–16 …. 6.125 s 16 …. 6.126 ss 17–27 …. 5.116 s 35(2) …. 5.95 s 39 …. 5.94 s 51 …. 10.48, 10.49 s 51(2) …. 10.49 s 51(3) …. 10.50 Relationships Amendment (Caring Relationships) Act 2009 …. 5.118, 10.54 Research Involving Human Embryos Act 2008 …. 7.32 Status of Children Act 1974 …. 7.5, 7.42 Pt II …. 7.20 Pt III …. 7.20 s 3(1) …. 7.5 s 10C(2) …. 7.20 s 10D(2) …. 7.20 ss 13–14 …. 7.17 s 13(1) …. 7.20 s 14(1) …. 7.20 s 15(1) …. 7.20 s 16(1) …. 7.20 s 18 …. 7.43 s 23(2)(a) …. 7.43

Western Australia Administration Act 1903 s 12A …. 7.5 Artificial Conception Act 1985 …. 7.20 s 5 …. 7.20 s 6A …. 7.17

s 7(2) …. 7.20 Child Support (Adoption of Laws) Act 1990 …. 11.39, 11.50 Children and Community Services Act 2004 …. 3.34 Pt 4 …. 3.43 s 9(a) …. 3.43 s 9(b) …. 3.43 s 9(f) …. 3.43 s 30 …. 3.44 s 124A …. 3.37 s 124B …. 3.37 Commonwealth Powers (De Facto Relationships) Act 2006 …. 4.92, 12.21 Criminal Code Act Compilation Act 1913 s 257 …. 3.28 s 306 …. 3.29 Family Court Act 1975 …. 4.76, 4.78, 4.79 s 9 …. 4.116 s 11 …. 4.118 s 12(1) …. 4.116 s 15 …. 4.116 s 16 …. 4.116 s 20 …. 4.117 s 27(1)–(2) …. 4.79 s 28 …. 4.116 Family Court Act 1997 …. 1.48, 1.57, 4.76, 4.78, 4.79, 4.116, 5.92, 5.114, 7.6, 8.16, 10.47, 11.2, 12.20 Pt 2 …. 4.79 Pt 5, Div 7 …. 11.2 Pt 5, Div 8, ss 133–141 …. 10.62 Pt 5A …. 5.91, 12.21 Pt 5A, Div 2 …. 4.72, 12.21 Pt 11 …. 3.8 s 4(1) …. 7.45 s 5 …. 3.37 s 5(1) …. 4.72 s 9 …. 4.79 s 11 …. 4.116 s 15 …. 4.116 s 18(1) …. 4.116

s 22 …. 4.118 s 24 …. 4.117 ss 30–31 …. 4.79 s 36(2) …. 7.44 s 37 …. 4.116 s 66(2) …. 7.5 s 69(1) …. 7.5 s 160 …. 3.37 s 162 …. 8.116 s 205V …. 12.21 s 205ZB …. 6.122 s 205ZC …. 10.49 ss 205ZC–205ZD …. 10.48 s 205ZD(3) …. 10.49 s 205ZD(4) …. 10.50 Family Court Amendment Act 2002 …. 1.57, 20.21 Pt 5A …. 4.78 Family Law Amendment Act 1976 …. 4.117 Family Provision Act 1972 s 4 …. 7.5 Federal Courts (State Jurisdiction) Act 1999 …. 4.104 Gender Reassignment Act 2000 …. 5.13 s 14(1) …. 5.13 Human Reproductive Technology Act 1991 …. 7.31–7.33, 7.35 s 18(1)(f) …. 7.30 s 20 …. 7.29 s 23 …. 7.33 s 23(1)(d) …. 7.34 s 23(1)(e)(ii) …. 7.35 s 24 …. 7.29 s 26 …. 7.29 Inheritance (Family and Dependants Provision) Act 1972 …. 7.5 Interpretation Act 1984 s 13A …. 5.104, 7.33 s 13A(1) …. 5.94, 12.22 s 13A(2) …. 5.95, 12.22 s 13A(3)(b) …. 5.104 Jurisdiction of Courts (Cross-vesting) Act 1987 …. 4.93, 4.101

s 3 …. 4.96 s 5 …. 4.96 s 9 …. 4.96 Restraining Orders Act 1997 …. 3.22 s 5 …. 3.24 s 12 …. 3.25 s 13 …. 3.24 s 65 …. 3.24 s 66 …. 3.24 Surrogacy Act 2008 …. 7.42, 7.43 s 13 …. 7.43 s 17(a)(i) …. 7.43 s 19 …. 7.43 s 21 …. 7.43 s 21(4)(b) …. 7.43 Wills Act 1970 Pt IX …. 7.5

Canada Divorce Act 1985 s 17 …. 8.108

International Convention on the Elimination of All Forms of Discrimination Against Women …. 1.68 Hague Convention on the Civil Aspects of International Child Abduction 1980 …. 6.13, 8.144, 8.149–8.153, 8.157, 8.160, 9.52, 9.93 Art 1 …. 8.149 Art 3 …. 8.153 Art 7 …. 8.157 Art 9 …. 5.67 Art 11 …. 5.63, 5.68 Art 13 …. 5.71 Art 14 …. 5.63 International Covenant on Civil and Political Rights Art 2 …. 1.68 Art 3(3) …. 3.6 Art 9 …. 3.6 Art 17 …. 3.6

Art 19 …. 3.6 Art 23 …. 3.6 Art 24 …. 3.6 Art 26 …. 1.68 Art 34 …. 3.6 Art 39 …. 3.6 United Nations Convention on the Rights of the Child 1989 …. 8.1–8.4, 8.18, 8.22, 8.34, 8.55, 8.78, 9.43, 9.110 Art 2 …. 8.18 Art 3(1) …. 8.55, 8.60 Art 5 …. 8.4, 8.22 Art 7 …. 8.18 Art 9 …. 8.75 Art 9(3) …. 8.18, 9.89, 9.96, 9.110 Art 12 …. 2.18, 8.4, 8.72, 8.75, 9.45 Art 12(1) …. 9.41 Art 14 …. 9.76 Art 30 …. 9.78, 9.79, 9.81 Art 18 …. 8.18 Art 37 …. 8.4

New Zealand Care of Children Act 2004 s 139A …. 8.108 Family Proceedings Act 1980 s 2 …. 5.7 Matrimonial Property Act 1976 …. 12.2 Property (Relationships) Act 1976 …. 12.2 Status of Children Act 1969 …. 1.56, 7.5 United Kingdom Legitimacy Act 1926 …. 7.3

United Kingdom Children Act 1989 …. 8.7, 8.8, 8.36 Children (Scotland) Act 1995 …. 8.20, 8.22 s 1 …. 8.20 s 2 …. 8.20 Civil Partnership Act 2004 …. 5.11 Clandestine Marriages Act of 1753 …. 1.4, 5.23, 5.65

s 18 …. 5.23 Divorce and Matrimonial Causes Act 1857 …. 1.11, 1.19, 1.21, 1.24, 1.35, 4.22, 4.69, 6.92, 12.12 s 26 …. 4.69 Judicature Act 1873 …. 1.21 Law Reform (Married Women and Tortfeasors) Act 1935 …. 4.69 Law Reform (Miscellaneous Provisions) Act 1970 …. 5.19 s 3(2) …. 5.20 Legitimacy Act 1926 …. 5.84 Marriage and Registration Act 1856 …. 5.23 Married Women’s Property Act 1870 …. 4.69, 5.16 Married Women’s Property Act 1882 …. 4.69, 5.16, 12.12 s 17 …. 12.13, 12.14 Matrimonial Causes Act 1857 …. 5.15, 10.12 Matrimonial Causes Act 1937 …. 1.29 Matrimonial Causes Act 1963 …. 6.86 Matrimonial Causes Act 1973 s 1 …. 1.40 s 25 …. 10.13 s 47 …. 5.7 Matrimonial Proceedings and Property Act 1970 …. 12.14 s 27(1)(b) …. 4.30 Registration Act 1837 …. 1.4

TABLE OF CONTENTS ___________________________

Table of Detailed Contents Preface Acknowledgments Table of Cases Table of Statutes Chapter 1

Law, Society and the Family

Chapter 2

Dispute Resolution in Family Law

Chapter 3

Violence and Abuse

Chapter 4

Constitutional Powers and the Family Courts

Chapter 5

Marriage and De Facto Relationships

Chapter 6

Nullity, Divorce and Termination of De Facto Relationships

Chapter 7

Parentage

Chapter 8

Child-Related Disputes: The Legislative Framework

Chapter 9

Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility

Chapter 10

Financial Support of Married and De Facto Partners

Chapter 11

Financial Support of Children

Chapter 12

Property Proceedings: Preliminary Issues

Chapter 13

Property Proceedings: The Legislative Framework

Chapter 14

Property Proceedings: The Exercise of the Discretion

Chapter 15

Property Proceedings: Specific Issues

Index

TABLE OF DETAILED CONTENTS ___________________________

Table of Detailed Contents Preface Acknowledgments Table of Cases Table of Statutes Chapter 1

Law, Society and the Family Introduction A short history of English marriage and divorce law Marriage Marriage breakdown and its early remedies Annulment Parliamentary divorce Divorce for the common man (and woman?) The coming of divorce From fault to irretrievable breakdown Adultery Cruelty, desertion and incurable insanity Irretrievable breakdown Developing an Australian family law

Introduction Matrimonial Causes Act 1959 (Cth) Family Law Act 1975 (Cth) The creation of the Family Court of Australia Families in Australia: The modern social context The modern family Families based on marriage Families based on cohabitation — ‘de facto’ marriage Same-sex couples Children as the basis of family law regulation Family violence and family law The psychological impacts of relationship breakdown Infants and toddlers Preschoolers School age Helping younger children transition Early adolescence Reading the signs Chapter 2

Dispute Resolution in Family Law Introduction Out-of-court FDR Family Relationship Centres What is FDR and who are FDR practitioners? Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)

Dispute resolution processes Negotiation Mediation Child-inclusive mediation Further FDR processes outside the court system Collaborative law Legal aid conference/dispute management Arbitration Pre-action procedures Parenting disputes and s 60I certificates Property settlement and maintenance When is FDR unsuitable? FDR processes within the court system Family consultants Conciliation and case assessment conferences Obligations on advisers Family counselling in respect of children Confidentiality and admissibility of communications in family counselling and FDR Chapter 3

Violence and Abuse Introduction Government inquiries following the 2006 reforms New definitions of ‘family violence’ and ‘child abuse’ in the FLA Recent developments Family violence Child abuse

International instruments Injunctions Introduction The injunction as protection from violence and harassment Injunctions excluding a party from the home Injunctions for the protection of a child (and others) Enforcement Protection orders under state and territory legislation Relationship between Commonwealth and state or territory laws What constitutes child abuse? Incidence, causes and effects of child abuse Protecting children from abuse under state and territory legislation Mandatory reporting under state and territory laws Mandatory reporting under the FLA State intervention for the protection of a child Child protection: the relationship between the Commonwealth and state and territory laws Other strategies Chapter 4

Constitutional Powers and the Family Courts Introduction Constitutional powers The marriage power

The matrimonial causes power The FLA The first challenge to the FLA: Russell v Russell The effects of Russell v Russell The limits of federal jurisdiction Introduction Federal law and the adoption of children Third parties and the ‘child of the marriage’ Wardship and the welfare jurisdiction of the Family Court Testing the limits of the welfare jurisdiction Other proceedings between the parties Overcoming the limitations: first steps Involvement of the state courts State family courts The Family Court of Western Australia Overcoming the limitations: bold steps Associated and accrued jurisdiction Referral of power Cross-vesting of jurisdiction Domicile and the basis of jurisdiction The Family Courts The Family Court of Australia The Federal Circuit Court of Australia The Family Court of Western Australia Appeals The nature of appeals

Full Court of the Family Court of Australia Appeals from the Federal Circuit Court of Australia (and the Magistrates Court of Western Australia) Appeals from the Family Court of Australia and the Family Court of Western Australia (or a state and territory Supreme Court) Appeals to the High Court Chapter 5

Marriage and De Facto Relationships Introduction Marriage Essential characteristics Monogamy Polygamy Indigenous Australians — Aboriginal customary marriages A man and a woman A voluntary union For life Engagements and breach of promise Codifying marriage Introduction Marriage Act Marriage Amendment Act 1985 (Cth) and the marriage of foreign nationals in Australia Capacity to marry Freedom to marry Prohibited relationships

Marriageable age Consent to the marriage of minors Formalities Marriages in Australia by authorised celebrants Consular marriages in Australia Australian marriages overseas Recognition of foreign marriages Introduction The ‘new’ statutory recognition rule: local law Recognition at common law No recognition of ‘foreign’ same-sex marriages Presumed validity of marriage Second marriage ceremonies Consequences of non-compliance with the Marriage Act Legitimation De facto relationships Introduction De facto relationships and the FLA The FLA definition The nature of the s 4AA inquiry The key concepts — ‘a couple living together on a genuine domestic basis’ Multiple relationships The circumstances of the relationship Existence of the relationship over time De facto relationship declarations

Relationship registration schemes Close and caring personal relationships Civil partnership laws Chapter 6

Nullity, Divorce and Termination of De Facto Relationships Introduction Jurisdiction — divorce and nullity Institution of proceedings Nullity Introduction Subsisting prior marriage Prohibited relationships Invalidity under s 48 of the Marriage Act 1961 (Cth) Absence of real consent Duress or fraud Mistake Mistake of identity Mistake as to the nature of the ceremony Mental incapacity Party below marriageable age Divorce Introduction Irretrievable breakdown of marriage Separation Separation under the same roof Reasonable likelihood of cohabitation being

resumed Duration of separation The two-year marriage — s 44(1B) and (1C) of the FLA Divorce orders When divorce order takes effect Arrangements for children Rescission of divorce orders Foreign divorces, annulments and legal separations Void and invalid marriages Divorce and nullity Declarations of validity Ancillary proceedings Termination of de facto relationships Introduction Meaning of breakdown What constitutes breakdown of a de facto relationship Registered relationships and civil partnerships Chapter 7

Parentage Introduction Status of children Historical background Status of children legislation Establishing parenthood Presumptions of parentage under the FLA Parentage evidence

Assisted conception Legislative solutions Known donors under the FLA Assisted conception and child support Regulation of artificial/assisted conception and related research procedures Status of frozen embryos Posthumous sperm Legislative developments Access to assisted conception procedures Surrogacy The status of surrogacy arrangements Legislative developments Surrogacy arrangements and the FLA Conflicting decisions in the Family Court Parental responsibility v orders for legal parentage Conclusion Chapter 8

Child-Related Disputes: The Legislative Framework Introduction The United Nations Convention on the Rights of the Child 1989 Proceedings in respect of children under the FLA Background to the current legislative regime Scope of operation of Pt VII of the FLA Key features of Pt VII Parental responsibility

Content of parental responsibility Who has parental responsibility? Joint or several responsibility? Scope of parental responsibility Reallocation of parental responsibility Parenting agreements Institution of proceedings and procedure Who may institute proceedings? Required jurisdictional connection Parenting orders Orders dealing with where a child lives Orders dealing with children spending time, or communicating, with another person Proceedings in respect of parenting orders Exercise of the court’s jurisdiction: the best interests of the child as the paramount consideration The mandatory process for determining best interests Scope of operation of the best interests of the child principle under the FLA The less adversarial trial Representation of children’s interests: the independent children’s lawyer Circumstances in which the court may appoint an ICL Role of an ICL Discharging an ICL

Expert evidence Family reports by family consultants Orders that can be made General Orders least likely to lead to further proceedings Interim orders Variation of orders in respect of children Interrelationship between parenting orders and family violence orders The Family Court’s welfare jurisdiction Enforcement of orders in relation to children Background The current legislative scheme Specific legal mechanisms dealing with noncompliance Legislative restrictions regarding the removal of children from Australia Location orders Recovery orders International child abduction Chapter 9

Children and Parents: The Exercise of Discretion in Reallocating Parental Responsibility Introduction The statutory framework for applying the best interests principle Applying the presumption of equal shared parental responsibility The operation of s 65DAA and shared parenting

The historical preference for mothers as custodians Attachment theory Research on the benefits to children of shared parenting The use of social science research as an aid to the exercise of discretion Section 65DAA and shared parenting Relevant considerations in the exercise of the court’s discretion Introduction Findings of credit Primary versus additional considerations The two primary considerations The benefit to a child of a meaningful relationship with both parents Protection from harm and family violence Additional considerations Views of the child Disturbing the status quo Separation of siblings Parents, third parties and the role of biology in decision-making The general conduct of the parties Matrimonial conduct of the parties Kidnapping Unconventional lifestyle Homosexuality

Religion Children of Aboriginal or Torres Strait Islander descent ‘Spend time with’ orders Orders not permitting children to spend time with parents Orders for children to spend time with nonparents The impact of a child not wanting to spend time with a parent The intractable nature of ‘spend time with’ orders Allegations of child sexual abuse in contested child proceedings Relocation cases Change of name Chapter 10

Financial Support of Married and De Facto Partners Introduction Support of married partners Introduction The history of spousal maintenance Policy issues in the current law Jurisdiction and types of maintenance orders Entitlement to spousal maintenance The threshold: s 72 The court’s power under s 74 and the s 75(2) factors The parties’ needs and means

Financial relationships with third parties Section 75(2)(o) and considerations of conduct Private and public purses: the relationship between spousal maintenance and social security Spousal maintenance orders Form Modification Duration Enforcement The future of spousal maintenance Support of de facto partners Introduction Statutory maintenance entitlements prior to the commencement of Pt VIIIAB in 2009 Statutory maintenance entitlements after the commencement of Pt VIIIAB Threshold issues and time limits Geographical requirements The court’s power under s 90SE and the s 90SF(3) factors Modification and cessation of de facto relationship maintenance order Enforcement Child-bearing expenses Chapter 11

Financial Support of Children Introduction

Child maintenance principles under the FLA Maintenance for adult children Applications on the basis of an adult child’s disability Applications to enable an adult child to complete his or her education Liability of step-parents for child maintenance The CSS Introduction Background to the introduction of the CSS Reform of the CSS Registration and collection of child support Introduction Objects Collection, payment and enforcement of child support Associated changes to social security Administrative assessment of child support Introduction Children to whom administrative assessment applies Persons who may apply for administrative assessment Persons who may be liable for administrative assessment Recovering money wrongly paid under an administrative assessment Processing applications for administrative

assessment Child support period Statutory formula for administrative assessment of child support Departure from administrative assessment Introduction Significantly reduced capacity of either parent to provide financial support High costs of the child Child or parents’ financial situation and payments in lieu of child support Changes to an assessment under Pt 6A Varying a departure from assessment Orders for child support other than in periodic form Private arrangements for child support Cessation of child support Chapter 12

Property Proceedings: Preliminary Issues Introduction Achieving economic justice? The economic consequences of relationship breakdown Extraneous factors resulting in financial disadvantage for women Historical background The Commonwealth and married couples Parties to a de facto relationship Policy and reform issues in relation to financial

matters Jurisdiction Married couples Arising out of the marital relationship Proceedings following the death of a party Principal relief, including overseas divorce and nullity Parties to former de facto relationships De facto couples: threshold conditions Conclusion Chapter 13

Property Proceedings: The Legislative Framework Introduction The time limits for bringing an application for property settlement Married couples Parties to former de facto relationships The finality principle Declaration of property interests An overview of the relevant legislative provisions for dividing property Dividing property under the FLA The four-step approach post-Stanford The first ‘fundamental principle’: identifying legal and equitable interests in property Defining property Financial resources Companies and discretionary family trusts

Notional property and add backs? Notional property post-Stanford Valuing property Liabilities Full and frank disclosure The second and third ‘fundamental principles’ and the just and equitable requirement A structured approach: four or five steps? The nature of the inquiry The content of the inquiry A summary of the property pathway post-Stanford Conclusion Chapter 14

Property Proceedings: The Exercise of the Discretion Introduction The exercise of the discretion The alteration of property interests Identification of contributions Financial contributions Non-financial contributions Contributions to the welfare of the family Assessing contributions Global or asset-by-asset approach? The rise of the partnership approach and the fall of ‘special contributions’ Equality as a starting point rejected Greater value (in theory) placed on ‘women’s

work’ The rise and fall of ‘special’ contributions The rise and rise of special contributions The fall and fall of special contributions Financial misconduct Family violence The Kennon decision After Kennon Contributions Initial contributions Post-separation contributions Gifts Inheritances Windfalls Compensation awards Additional factors Section 79(4)(d)/90SM(4)(d): effect on earning capacity Section 79(4)(e)/90SM(4)(e): other factors Increased emphasis on ‘other factors’ Section 79(4)(f)/90SM4(f): order affecting a party or child Section 79(4)(g)/90SM(4)(g): child support The contemporary approach to additional factors A ‘just and equitable’ order Forms of order for property adjustment

Relationship between spousal maintenance and property adjustment Conclusion Chapter 15

Property Proceedings: Specific Issues Introduction Superannuation Superannuation before the 2002 amendments Background information on superannuation Superannuation after the 2002 amendments Splitting orders and flagging orders Is superannuation property? Superannuation agreements Injunctions Introduction Injunctions restraining the disposition of property Orders and injunctions against third parties Situation after the commencement of Pt VIIIAA Practical implications of Pt VIIIAA Section 85A Setting aside transactions Position of the bona fide purchaser Conclusion Financial agreements and consent orders Orders made with the consent of the parties Maintenance agreements under the FLA (1976– 2000)

Financial agreements under the FLA (2000– present) Requirements of financial agreements that are enforceable between the parties What may be included in a financial agreement Spousal maintenance Other matters relating to financial agreements Setting aside a financial agreement A binding financial agreement that ousts the jurisdiction of the courts Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth) Bankruptcy and the FLA Introduction: Becoming bankrupt in the context of family law proceedings Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Setting aside property orders Introduction Miscarriage of justice Impracticability Default Exceptional circumstances relating to the care, welfare and development of a child Consent to vary Varying orders made with the consent of the parties Conclusion

Index

[page 1]

1 LAW, SOCIETY AND THE FAMILY ___________________________

Introduction 1.1 As with many areas of law, what is called ‘family law’ in Australia is somewhat arbitrary. The categorisation of law into discrete topics has its uses, though it must be remembered that, in practice, the boundaries of law are not quite so neat. Although there are many important and interesting laws that regulate families and interact with ‘family law’, in this book we concern ourselves predominantly with those laws that have grown out of the laws on marriage, and later, divorce. Given the dramatic changes in social attitudes to marriage, divorce, parenting etc. in the last century, it is unsurprising that this area of law has seen very regular and radical reform; indeed, so much so that it is impossible in a book such as this to chart in detail the history of family law legislation in Australia. However, it is important to understand the historical context of Australia’s current family law and so we will consider (in this chapter and elsewhere where relevant) the more distant historical origins of Australian family law, as well as the key developments that have led us to our present legislative position. Many would consider families as a foundational unit within society and thus would consider family law — which regulates

that unit to some extent — as pivotal in influencing the way society develops. While there is an inevitable ‘chicken and egg’ aspect to such an argument, it is nonetheless important to consider the social context of family law. In this chapter we will look at recent data on Australian families to consider how this ‘foundational unit’ has changed over time and provide some background to the rise, and increased acceptance, of less traditional family forms. We will also introduce the topic of family violence as, unfortunately, addressing issues of family violence is ‘core business’ for Australia’s family courts. Naturally, for many people, their interaction with family law will occur when their own interpersonal relationship breaks down. For those working in family law, it is important to keep in mind the very particular psychological setting in which many family law disputes are negotiated. In this chapter we therefore also consider the psychological context for parents and children of family breakdown. In Chapter 9 we consider in more detail the psychological impacts for children of different post-separation parenting arrangements, in the context of discussing how judges exercise their discretion when resolving parenting disputes. [page 2]

A short history of English marriage and divorce law Marriage 1.2 As with other areas of law, Australian family law owes much to its English heritage. Since the English family was traditionally based on marriage, that ‘institution’ has been central to the development of family law, with the state purporting to give it full

protection (though historical notions of how best to protect families formed by marriage may not equate with modern ideas on the subject). In early Christianity, marriage was a private affair, transacted between the parties and regarded as of little interest to others. Marriage was simply constituted by the parties saying to each other that they were regarding themselves as married to each other (per verba de praesenti) or that they intended taking each other as husband and wife (per verba de futuro). There was no need for witnesses or parental consent, nor was there any system of registration. In a simple village society where everyone knew everyone else, there was no need for any greater formality. It seems that dissolution was similarly simple, though there were some economic sanctions. The community always had an interest in ensuring that all its members were suitably provided for. This meant, typically, that the husband had to provide for his wife and his offspring even if he abandoned them, unless the wife went with another man who then became economically responsible for her. 1.3 It was not until about the seventh century CE that the church (meaning the Roman Catholic Church) began to take an interest in marriage, as part of its warfare against the ‘sins of the flesh’. By the twelfth century, marriage law had become a matter of church jurisdiction. However, even then no need for special formalities existed. It was only in 1545 that the church, at the Council of Trent, formulated rules that were to govern the formation of marriage from then on. These rules, among other things, required the presence of an ordained priest. 1.4 In England, however, the Roman Catholic Church had no jurisdiction after the Reformation and consequently the previous pre-Tridentine state of affairs continued to exist until the Clandestine Marriages Act of 1753 (UK) (Lord Hardwicke’s Act). Prior to that Act, although marriage was indissoluble, it was comparatively easy to avoid the consequences of being married. This could happen by one of the parties, usually the husband,

absconding and moving to a different part of the country, or even by outright denial that a marriage had taken place at all. If one of the parties contracted another marriage, it was technically bigamous. However, bigamy did not become a felony until 1603, and in the absence of a registration system it was not easy to prove. No central system of registration existed. The only evidence was the parish registers, but these were fairly haphazard and in any case, marriage did not necessarily have to be celebrated in church. The Registration Act was not enacted until 1837. [page 3] 1.5 The whole set-up was reasonably adequate in a village society based on the parish, with poor transportation and a relatively immobile population. The parish was the powerful organ of local government, including what later became known as social welfare, which included the care of the elderly, the sick and the poor. Concern was primarily economic, ensuring that everyone had the means of supporting themselves. A man was responsible for his wife and children; if he could not look after them, or was not there, or was dead, then they became the responsibility of the parish. It has been well said that the history of English divorce law was conditioned by three factors: wealth, the church and the aristocracy. Marriage was the means for handing on wealth, titles and estates within the families of the gentry and other landowning classes. Among these groups there was a fear, amounting to an obsession, of having ‘spurious offspring’ introduced into the family. For example, if one’s wife were seduced by, say, the stable boy or the gardener, that could introduce ‘spurious offspring’ into one’s family: a child who was not that of the husband. Eventually, the interloper would walk off with one’s name, title, estates and other wealth. The threat of such a situation for the aristocracy and the propertied classes as a whole had to be averted at all costs.

1.6 With the Industrial Revolution came greater mobility, and the opportunity of finding employment in the new towns and factories. A man could disappear and leave his family to be kept by the parish, while the absconder could contract a bigamous marriage elsewhere and start creating new family responsibilities. Before 1857, divorce as we know it did not exist, but there were always cases of one party, usually the husband, growing tired of his wife and wanting to get out of the marriage. Different expedients were resorted to in order to escape marital responsibility. One such method of popular ‘divorce’ was that of ‘selling’ one’s wife. An instance occurs in Thomas Hardy’s novel, The Mayor of Casterbridge.1 Ivy Pinchbeck relates another graphic account in Women Workers and the Industrial Revolution 1750– 1850,2 where the officers of a parish organised such a sale in order to reduce the number of poor persons whom the parish had to look after. The officers provided the intended purchaser with the money (one shilling) with which he would buy the woman, which he duly did. He would then become financially responsible for her, which meant that she would no longer be a liability on the parish. The parish officers were so pleased with the success of their scheme that they put up additional money for a wedding feast for the woman and her new ‘husband’. Unfortunately for the scheme, it ultimately proved unsuccessful. In time, the new husband grew tired of the woman and, having ascertained that his ‘marriage’ was bigamous, and therefore not binding, duly deserted her. The parish was thus once more compelled to take the woman into its care. [page 4] This anecdote, most likely true, is a poignant illustration of the early degraded status of women who were entirely dependent on the support of a man, in the absence of whom they became an unwanted burden on a less-than-willing community. It also

demonstrates the essentially financial character of marriage as an institution. It shows how the indissolubility of marriage drove those who could not afford the expense of obtaining a parliamentary divorce (see 1.11) to expedients not recognised by the law. It further shows how those expedients were (a) widely known, (b) connived at by minor officialdom, and (c) legally ineffective. Finally, it shows how women who were unfortunate enough to have lost, or never to have found, a male ‘protector’ in the form of a husband were regarded as economic liabilities. To expect them to have been treated as persons in their own right, or with anything amounting to personal autonomy, would have been to expect something that was to take more than another century to evolve. One can only imagine how demeaning it must have felt for a woman to be shunted from parish to parish and from man to man, simply in order to balance some local authority’s books.

Marriage breakdown and its early remedies 1.7 Even before divorce in the modern sense became available, there were other methods of ending a marriage. Official attitudes were all against this; indissolubility was believed to uphold the sanctity of marriage and was therefore a non-negotiable part of the general package of national beliefs. Still, subterfuges were used to end marriages. In the circumstances, if a man wanted to be rid of his wife, the following ‘remedies’ were available. These did not favour equally all strata of society.

Annulment 1.8 Perhaps the most popular remedy was annulment — the legal setting aside of a marriage because it was tainted by some flaw. It was certainly not as expensive as divorce by Act of Parliament. By the time of Henry VIII, civil as well as religious annulment of a marriage was available, albeit usually only to a

man. Annulment enabled the parties to remarry, though it rendered any children illegitimate. Today annulment of a marriage is rare, but this was not so in medieval times. If a person could persuade a court that the marriage was tainted by falling within one of the categories of nullity (see below; and see 6.14ff for the modern categories of nullity), it meant that no marriage had ever come into existence — it was void. Once that fact had been recognised, the supposed ‘marriage’ could be set aside by a court order. 1.9 A marriage was void if there was an impediment to its formation. The most obvious impediment arose where one of the parties was already married. Another impediment existed if the parties were too closely related. This could occur if they were related by consanguinity (blood relationship) or by affinity (relationship [page 5] by marriage). Prior to the Reformation, under the Roman Catholic Church the ecclesiastical lawyers developed quite elaborate rules about these impediments to the marriage relationship. These rules were described by that great English legal historian, Frederick Maitland, as a ‘calculus of kinship’ and ‘a maze of flighty fancies and misapplied logic’.3 Joseph Jackson QC has described the rules of affinity specifically as ‘a mixture of mathematics and mysticism’.4 1.10 Under these rules, people who were related by what we would regard as fairly distant family relationships were prohibited from marrying each other. If one of the parties had had sexual intercourse with a near relative of the other, or even, premaritally with that other party, that was enough to raise the impediment. A relationship akin to a blood relationship was then deemed to exist

between the parties, rendering marriage between them incestuous, and therefore unlawful. If such a relationship was not obvious or was unknown at the time, or even if the parties simply chose to ignore it and no one raised any objection at the time of the marriage, the marriage could be celebrated, and possibly never be disturbed during the parties’ lifetime. Then, if for any reason, one of them wanted it set aside, she (or more usually he) needed only to prove the impediment and, on coming before the ecclesiastical court, the marriage was liable to be declared null and void. The 1912 Royal Commission on Divorce and Matrimonial Causes (UK) commented on these rules with a quotation from the prominent ecclesiastical court judge, Sir Lewis Dibdin: These elaborate and highly artificial rules produced a system under which marriages theoretically indissoluble, if originally valid, could practically be got rid of by being declared null ab initio on account of the impediment of relationship. This relationship might consist in some remote or fanciful connection, between the parties or their godparents, unknown to either of them until the desire to find a way out of an irksome union, suggested minute search into pedigrees for obstacles — a search which somehow seems to have been generally successful.

A prominent example of the device of nullity based on affinity was that of Henry VIII, who used it in the course of his marital adventures. Having battled to secure the dubious annulment of his marriage to first wife, Catherine of Aragon, on the basis that she had been married to his older brother, Henry VIII used the device again when he ‘remembered’ that he had had sexual relations with Anne [page 6] Boleyn’s elder sister, Mary, before his marriage to Anne. His marriage to Anne was therefore incestuous; this gave him a valid ground for having it annulled.5

Parliamentary divorce 1.11 Parliamentary divorce seems to have been occurring for about 250 to 300 years before the first Divorce Act in England — the Divorce and Matrimonial Causes Act 1857 (UK) — came into force. Its rationale was expressed by the Earl of Macclesfield in 1697: … it would be a most unreasonable hardship upon him … that for his wife’s fault he should be deprived of the common privilege of every freeman in the world, to have an heir of his own body to inherit what he possessed.6

This quotation illustrates the predominant interest of the wealthy and land-owning classes in England in being able to set aside a marriage on dynastic grounds because of the need for an heir to titles and property. The ‘common privilege of every freeman’ was at stake. The interests of the common man or woman were not something that would have occurred to members of the ruling classes to consider. Nor, of course, was it considered plausible that infertility lay with the husband! 1.12 There was, however, no legal structure at that time for effecting a divorce as we know it. The ecclesiastical courts could not grant a divorce a vinculo: literally, from the chains (of marriage; ie from the marriage relationship). If the marriage was valid and not void, all they could give was a divorce a mensa et thoro (from bed and board). This was later called a ‘judicial separation’ and existed until 1976, when it was abolished by the Family Law Act 1975 (Cth) (FLA).7 It was a court order enabling a wife to live apart from her husband and still be entitled to maintenance from him. If she lived apart from him without such an order, she risked being regarded as a deserting party and, as such, was not entitled to anything. It did not, however, sever the marriage bond; the parties remained married to each other and neither was able to enter into another marriage. 1.13

To get a parliamentary divorce, a threefold procedure had

to be gone through. First, a divorce a mensa et thoro had to be obtained from the ecclesiastical court. To achieve this it was necessary, first, to be able to identify an adulterer (the basis for the divorce). This was not always an easy matter. The next step was to sue that person for damages in the common law courts. The cause of action [page 7] was quaintly called criminal conversation or crim con for short. It was based on the injury caused to the ‘innocent’ spouse, which in reported cases was usually the husband. The loss was both economic, because of loss of services, and to feelings. It was therefore a common practice to exaggerate enormously the virtues and abilities of the wife (as a household manager, child-bearer and carer), for the greater her virtue before her fall, the greater the loss to her husband after that calamitous event and, consequently, the damages he could claim from the adulterer. Again, this was an illustration of the value of a wife as her husband’s chattel. Once these two steps had been completed, the plaintiff could petition the House of Lords for a divorce a vinculo. The petition would be presented to the House of Lords in much the same way as it would later in the Divorce Court, for when divorce became available through the common law courts in 1857, the grounds and procedure were modelled on the procedure in the House of Lords. On proof of the wife’s adultery being made out and after legal argument, the House could grant the divorce (the House of Commons generally followed the House of Lords, without fresh argument being required). As a result, an Act of Parliament was passed to the specific effect of dissolving the particular marriage and enabling the parties to marry again. This latter element was, of course, the most important part of

the Act and the reason why the action was instituted in the first place. 1.14 It is obvious that this was a very male-centric procedure. It was based on the damage caused to a man (of property) who was being deprived of the chance of a legal heir to whom to pass on his estates and titles. He had been deprived of the services of his wife, and of her womb, to which he had a legal claim for the production of his heirs. Not only had his honour and reputation been soiled, but since divorce was unavailable, he was deprived of the chance of marriage to another woman who might be able to produce offspring. In the years during which parliamentary divorce was available, in all something like 300 such divorces were granted by parliament. Of these, all but four were granted to men.

Divorce for the common man (and woman?) 1.15 The remaining ‘remedies’ of ‘wife sale’, ‘disappearance’ and ‘living in sin’ were very much also-rans in this litany of matrimonial remedies. The first has already been described: see 1.6. Both ‘wife sale’ and ‘disappearance’ might also involve one or both parties committing bigamy by remarrying while legally still married. As has been mentioned, however, the question of proof of bigamy was not an easy one, particularly before there was a national system of marriage registration. The alternative was the third popular remedy, that of ‘living in sin’. This was also resorted to by the wealthy where, for example, they had not been able to go through the procedure for parliamentary divorce outlined above. 1.16 Not only then was there a double standard discriminating against women, there was also discrimination against the poor. Each of the steps described [page 8]

(the divorce a mensa et thoro, the suit for damages and, last, the proceedings in the House of Lords for a divorce a vinculo) required the attendance of lawyers and the presentation of legal argument. Such costs were estimated to be in excess of £1000, which obviously put the remedy out of reach of all but the extremely well-off.8 What then were the poor to do? An oft-quoted anecdote of some remarks by Maule J in 1845 draws attention to the incongruity of the existing ‘remedy’ of parliamentary divorce so far as the labouring poor were concerned. Maule J was a well-known and humane English judge, who was obliged to sentence a labourer who had been convicted of bigamy. This was some 12 years before divorce became available through the ordinary courts of law. The judge addressed the prisoner, Thomas Hall, who had bigamously ‘married’ a woman to help him look after his children after his own wife had absconded with another man. In castigating Hall for his unlawful conduct, the judge pointed out what he should have done: The law in its wisdom points out a means by which you might rid yourself from further association with a woman who had dishonoured you; but you did not think proper to adopt it. I will tell you what that process is. You ought first to have brought an action against your wife’s seducer if you could have discovered him; that might have cost you money, and you say you are a poor working man, but that is not the fault of the law. You would then be obliged to prove by evidence your wife’s criminality in a Court of Justice, and thus obtain a verdict with damages against the defendant, who was not unlikely to turn out a pauper … You must then have gone, with your verdict in your hand, to the House of Lords for a divorce. It would cost you perhaps 5 or 600 pounds, and you do not seem to be worth as many pence. But it is the boast of the law that it is impartial, and makes no difference between the rich and the poor. The wealthiest man in the kingdom would have had to pay no less than that sum for the same luxury; so that you would have no reason to complain.9

To show what he thought of the law, his Honour sentenced the prisoner to imprisonment until the ‘rising of the court’ that day, then to be released. 1.17

The law was full of double standards in this area. While in

official pronouncements those in government or the church never failed to remind people of the virtues of family life and to condemn any deviation from the straight and narrow, the authorities themselves did not always follow these worthy precepts. Thus if a man and his family had become paupers — often through no fault of their own — and the parish was obliged to look after them, they would be consigned [page 9] to the workhouse where they lived in conditions barely distinguishable from imprisonment. Husband and wife were rigorously separated from each other — lest they procreated further paupers for the parish to look after. Children were separated from their parents and barely allowed to see them. Dickens describes conditions in one workhouse, known as the Bastille, where on Sunday afternoons children were permitted to visit their mothers in the women’s room for one hour. When this happened, ‘bedlam was let loose for an hour’.10 A similar double standard existed in relation to convicts and their shipment to the colonies. For the most part, a man’s transportation overseas broke up his family, as there was no arrangement for them to be sent out with him or after him. Even if he got his ticket of leave, he was not usually entitled to return to the UK. In any case, he would not have the money for his fare, nor would his family have the money to follow him out to Australia. If he was released and he took up with another woman in the colonies, there seems to have been little impediment to his contracting a de facto or even a ‘legal’ marriage. Technically, he would be committing bigamy, but there seems to have been little or no attempt made to punish him for it, or even to find out about it. Consequently, the English authorities did not carry the lip service they paid to the sanctity of the family to circumstances where paupers or convicts were concerned. It is evidence of the

very different treatment of those who fell outside the confines of accepted conduct, for whatever reason. Indeed, such people were often treated as bordering on subhuman. 1.18 It cannot be overlooked that these stratagems were normally initiated by men. Indeed the first, that of wife sale, was so by nature and it would have been unthinkable for a woman to have sold her husband. Thus, as we now know, until relatively recent times, family life and the laws that regulated it were extremely male-dominated, to the grave disadvantage of women.

The coming of divorce 1.19 The incident of Maule J and Thomas Hall, whether apocryphal or not, shows that by the middle of the nineteenth century enlightened opinion had begun to question the absence of divorce by focusing on aspects where that absence caused hardship to many men and women. It was quite clear what his Honour thought of the state of the law in cases like this. It was just one of many straws in the wind leading up to the institution of legal divorce. In 1850, a Royal Commission was set up under Lord Campbell in England to investigate the whole question and its report led directly to the enactment of the [page 10] Divorce and Matrimonial Causes Act of 1857 (UK). Several strands in establishment thinking had gone against making divorce available. These were: 1.

Economic: this was to ensure that those responsible for the upkeep of dependent persons (women and children) bore those responsibilities and did not let those persons become a

burden on the community. 2.

3.

Social stability: often enough it was said that the family was ‘the pillar of society’ and that the family rested on marriage. Hence, it was thought, facilitating the destruction of marriage was taking the first step towards the destruction of society and towards anarchy. Religious: the mainstream churches all supported indissolubility: ‘whom God has joined together, let no man put asunder.’ This later came to be seen as a facile slogan. When all was said and done, it was people themselves who ‘put themselves together’ — or their parents or families, or economic expediency (as in upholding dynastic considerations), or social pressures (as in the notorious ‘shotgun weddings’, where a couple would marry only to save their expected child from illegitimacy).

1.20 It was the social, economic and demographic upheavals of the Industrial Revolution that led to increasing demands for change in this area. However, it was not going to be possible to effect the revolutionary change of making marriage dissoluble without drastic grounds being provided. To unmake the solemn, life-long contract that had been ‘made in heaven’, something had to occur that went to the very root of that contract if it was to be invalidated. Thus it was that nothing short of adultery — a notional breaking of those solemn marriage vows — would suffice before marriage could be set aside. This thinking had a strong historical attachment to notions of fault. This can be seen, for example, in the denial of a divorce to an applicant because of the notion of ‘recrimination’ or compensatio criminis, where both spouses had been guilty of adultery. It was regarded as ‘a set-off of equal guilt’ or ‘mutual compensation’, and so neither was then entitled to a divorce. As Lord Stowell put it in Beeby v Beeby11 (decided before the new divorce legislation): It is not unfitting if he, who is the guardian of the purity of his own house, has

converted it into a brothel, that he should not be allowed to complain of the pollution which he himself has introduced; if he, who has first violated his marriage vow, should be barred of his remedy: the parties may live together, and find sources of mutual forgiveness in the humiliation of mutual guilt.12

It was something of an irony that where both parties were unhappy, it seemed even less likely they could obtain a divorce, but then again, these early laws were not about the harmonious separation of unhappily married couples. Further, they [page 11] were not designed to improve the quality of such a marriage, or the quality of life of the parties or their children. 1.21 So, when divorce became more widely available, it was still very limited. Divorce was possible only where fault could be established, and that meant adultery. However, the double standard persisted. While a husband could divorce his wife for simple adultery, a wife could only get a divorce if she could prove her husband’s aggravated adultery. That meant adultery coupled with incest, bigamy, cruelty or desertion for two years, or his conviction for sodomy or bestiality. The main reason for this double standard was again the biological one: the danger of ‘spurious offspring’ being conceived. The basis for this philosophy was still the preoccupation of those making the laws with dynastic and inheritance considerations. Right up to this time, and the time of the Industrial Revolution, little concern was felt for the matrimonial arrangements of the poor, who had neither titles nor wealth to pass on to their offspring. Being ‘spurious’ in those circumstances meant nothing. Another consideration entered into official thinking concerning the family about the middle of the nineteenth century — paternalistic concern for those less well-off than ourselves. ‘The poor’, ‘orphans’, ‘fallen women’ and ‘the criminal classes’ became

the objects of societal ‘do-goodism’ and official concern. The ‘Lady Bountiful’ became the spearhead of social reform. At the same time, the Divorce and Matrimonial Causes Act 1857 (UK) took divorce and matrimonial causes out of the hands of the ecclesiastical courts. It created a new Court for Divorce and Matrimonial Causes. This was later to become part of the Probate, Divorce and Admiralty (PDA) Jurisdiction of the High Court of Justice, under the UK Judicature Act 1873. After 1970, it became the Family Division of the High Court of Justice. 1.22 So far, as we have seen, divorce had been purely a faultbased remedy. The official reasoning for this was based on a philosophy mentioned above: the family is the cornerstone of society and marriage is the basis of the family. It was therefore necessary to preserve marriage at all costs, if society was not going to disintegrate. As a result, marriage had to be kept, so far as possible, indissoluble or, to quote that famous ecclesiastical judge Lord Stowell in the case of Evans v Evans:13 For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility.

[page 12] 1.23 The only exception to that principle was the commission of a basic and heinous transgression against the ‘marriage contract’ by one of the parties to it. It had to be so serious as to go to the very heart of the institution of marriage. In the eyes of the establishment of the day, there was only one thing that to date had answered this description and that was adultery. The Royal Commission into the Law of Divorce, reporting in 1853, confirmed this view: Adultery may be, and in Protestant countries it is, generally, deemed a sufficient

reason for rescinding the union, because it is an offence which destroys altogether the primary objects of the married state, by introducing, in some instances, a confusion of offspring; by cutting off, in others, all hope of succession; and by diverting, in all, the affections and feelings into strange channels, which reason and religion forbid them to flow in. But these evils cannot necessarily be predicated as the certain results of the other cases [ie wilful desertion, cruelty]; for in them at least there is always a possibility of future reconciliation; and if it be possible, it is for the interests, the happiness, the well-being of society — especially that part of it which is most exposed and least protected — the women and children — that in such a matter the door of reconciliation should not be closed. We are, therefore, of opinion that Divorces a vinculo should not be extended beyond cases of adultery.14

Where this happened, the party offended against — the ‘innocent party’ — was given a right as against the ‘guilty party’ to have the marriage dissolved. That right was not given to the guilty party, and the innocent party could assert it only upon strict proof of the facts of the transgression. The consequences flowing from this were that ancillary matters such as custody, property and maintenance were all practically decided in favour of the innocent party, at first as a matter of course. In time, this approach began to cause problems. Guilty parties, who were divorced by their spouses, were free to marry again. However, innocent spouses who had been transgressed against were not always prepared to give their guilty spouses their freedom. Then the guilty party was unable to remarry or enter into a new relationship unless prepared to commit bigamy or ‘live in sin’. This presented society with a real dilemma because unmarried cohabitation was perceived as almost as great an evil as adultery. Moreover, it led to the procreation of ‘illegitimate’ children. Further, should the unmarried cohabitants break up, there was not the same measure of certainty as in a legal marriage of pursuing the man for the financial support of the woman and children. 1.24 While the 1857 Act had made divorce in the full sense possible for the first time, and had secularised it by taking it away from the ecclesiastical courts, it perpetuated and institutionalised gender inequality. We have already noted the double standards embodied in the Act: one law for the man and one law for the

[page 13] woman in the ground for divorce (see 1.21). The rationale was the simple fact of the biological difference between the sexes. As it was expressed by Lord Cranworth LC in the 1857 House of Lords debates on the Divorce Act: A wife might, without any loss of caste, and possibly with reference to the interests of her children, or even of her husband, condone an act of adultery on the part of the husband; but a husband could not possibly condone a similar act on the part of the wife. No one would venture to suggest that a husband could possibly do so, and for this, among other reasons … that the adultery of the wife might be the means of palming spurious offspring upon the husband, while the adultery of the husband could have no such effect with regard to the wife.15

It could be said that the law was only carrying into effect the prevailing view of women’s adultery, but this was in itself a selfperpetuating attitude. Women were the subordinate sex, the ‘weaker vessel’, ‘relative creatures’. The new law simply took over from that prevailing in relation to House of Lords divorces. Again, the rationale was male-centric and related to dynastic and property considerations.

From fault to irretrievable breakdown Adultery 1.25 The law as it was enacted in 1857 remained substantially the same for the next half century, in that only one ground of divorce, adultery, remained available. In cases of desertion or cruelty, for instance, judicial separation was available; however, the marriage relationship was not severed, nor were the parties able to remarry. Lip service was still being paid to the possibility, remote as it usually was, of an eventual reconciliation and reunion between the parties. However, in the long run, the problems arising out of these increasingly numerous broken, but not severed, marriages became too great. People were forming ‘illicit’

unions and ‘illegitimate’ children were born, but it was often difficult or impossible to enforce the obligation of support on a provider, which left the state to pick up the tab. Where the coming of divorce had been facilitated by basing it, at least in part, on its punitive aspect, that was too restricted a view if it was to serve an adjustive function in society. As is often the case when a social reform is put in place, anomalies were beginning to be perceived and it became necessary to think of further extensions. 1.26 The notion of ‘irretrievable breakdown’ of marriage appeared early in the twentieth century. This new approach looked to the substance, rather than the empty form, of a relationship. It was particularly noticeable in the exercise of the discretion. As mentioned in connection with Beeby v Beeby16 (see 1.20), where a petitioner sought a divorce from a spouse on the ground of adultery, the [page 14] commission of adultery by the petitioner, as well, originally negated the right to a divorce on the ground of ‘equal guilt’. However, over the years there were isolated cases where the courts did grant a divorce to an adulterous petitioner. As Shearman J expressed it in Marven v Marven,17 it was finally realised that: If I refuse a decree I should in a way be encouraging the continuance of the adulterous connexion … If the Court exercises its discretion it regularises two courses of adultery, which to laymen appears very wrong. If it refuses to do so it appears to give a general encouragement to marital infidelity.

It was also realised that it was in the best interests of any children involved, and of the community as a whole, if the actual matrimonial or sexual arrangements of members of the community could be regularised. An adulterous petitioner could

thus get a divorce, even though they might be penalised as regards maintenance liabilities and property dispositions. 1.27 The first change of any significance in the laws of divorce occurred in the UK in 1923, when the double standard that had discriminated against wives in the application of the adultery ground was removed. This same double standard, incidentally, remained for longer in other jurisdictions, such as the state of Victoria where it was only swept away by the FLA in 1976.

Cruelty, desertion and incurable insanity 1.28 The next important step forward occurred in 1937. Restricting the availability of divorce solely to the ground of adultery had been attracting a good deal of criticism and there was a movement afoot towards widening the grounds. There had been a UK Royal Commission in 1912 (the Gorell Barnes Commission) which had recommended a widening of the grounds, but its recommendations had been largely ignored at the time. In the 1930s, one of the most effective voices in favour of reform was that of the well-known writer and Member of Parliament, AP (later Sir Alan) Herbert, who introduced a private member’s Bill with a view to extending the grounds of divorce (he later wrote about this in The Ayes Have It (1937)).18 1.29 The Matrimonial Causes Act 1937 (UK) (also referred to as Herbert’s Act) added the divorce grounds of cruelty, desertion for three years and incurable insanity to that of adultery. The third of these new grounds was particularly important. It was the first step away from fault and towards irretrievable breakdown. The significance of this Act was that it looked at the reality of the relationship of the parties, instead of searching for a guilty party. The courts, too, were beginning to look at the question of breakdown in a number of cases in the early part of the twentieth

century, to test the reality of a given marriage relationship. This paved [page 15] the way towards the eventual conceptual acceptance of irretrievable breakdown as the sole determinant in judging a relationship. The concept was given judicial endorsement by the House of Lords in Blunt v Blunt19 in 1943: see 1.30. The two other new grounds, cruelty and desertion for three years, were both clearly fault grounds, but significantly they were not regarded as such serious transgressions against the marriage contract as adultery, which was always a fundamental breach. Unlike adultery, they also required intent: to be cruel, or, in the case of desertion simpliciter, there had to be animus deserendi, an intention to desert.20 Over time, the law even found a way around this excessive artificiality with the ‘invention’ of ‘constructive desertion’.21 This enabled a spouse to use the ground of desertion against the other spouse, even though that other spouse was not the one who had left, but had instead forced the complaining spouse to leave. Further, where in ordinary desertion there was the legal requirement of an ‘intent to desert’, so there had to be in constructive desertion a corresponding ‘expulsive intent’. Both these intents usually had to be inferred from more or less conclusive circumstances. Again, it was an example of where the dominant consideration of breakdown was cast in the form of fault. While society was beginning to recognise irretrievable breakdown, it was still paying lip service to fault as the basis for divorce. 1.30 There were other public policy considerations against such a restrictive approach to the availability of divorce. The very concept and meaning of marriage were being seriously eroded. People who were married to each other were not living together,

but living with new partners to whom they were not married. This state of affairs came at last to be seen as harmful to the continued existence of marriage as an institution. The concern this caused was given official recognition by the House of Lords in the 1943 case of Blunt v Blunt,22 where Lord Simon LC referred to: … the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.23

The High Court of Australia affirmed the principle in Henderson & Henderson.24 [page 16]

Irretrievable breakdown 1.31 A further Royal Commission on Marriage and Divorce25 — the Morton Commission — reported in 1956. Nine of its 19 members recommended complete breakdown as an additional ground. Another nine were opposed to it. The 19th member, Lord Walker, recommended irretrievable breakdown as the sole ground. In spite of what might have been regarded as a majority in favour of the recognition of irretrievable breakdown, the proposal was regarded as too controversial, so nothing was done. However, irretrievable breakdown was on the march. The next development was the modification in 1964 of the ground of cruelty. Cruelty had been regarded as a fault ground par excellence. As such, it had included as an essential ingredient an intent to direct cruel conduct at the other party. This meant having to prove an intent to be cruel which was directed at the party offended against, though the law was prepared to allow reliance on the old legal fiction, that everyone is presumed to intend the consequences of their own actions. In other words, intent could be inferred from conduct.

1.32 In two 1964 House of Lords’ decisions, Gollins v Gollins26 and Williams v Williams,27 there was a departure from the requirement to prove intent in cruelty. The emphasis now shifted to the protection of the spouse offended against according to the principle in Russell v Russell28 that ‘there must be danger to life, limb, or health, bodily or mental, or a reasonable apprehension of it’. 1.33 The failure to adopt irretrievable breakdown after the Morton Commission was only a temporary setback. Shortly after Gollins and Williams, the Church of England entered the debate. The Archbishop of Canterbury set up a committee to inquire into irretrievable breakdown. The committee, which comprised various people of talent, including church members, lawyers and judges, reported in 1966 under the title, Putting Asunder.29 This report recommended the adoption of the breakdown principle as the basis for divorce. Thus far, it followed the same line of thinking as that in the Morton Commission. However, it was the suggested method of implementing the proposal that proved controversial. It was proposed that to establish the presence of breakdown, there would in each case be a judicial inquiry that would examine all the relevant circumstances of the particular marriage under review. Only if irretrievable breakdown was held to have been established by such a judicial inquiry would a divorce be granted. [page 17] The impracticability of this solution was obvious. The time and resources required would have been immense, and judges were not trained in the behavioural sciences and were thus not equipped for such an inquiry. 1.34 Putting Asunder was referred by the (UK) government to the newly established Law Commission under Lord Scarman. The Commission’s report, Reform of the Grounds of Divorce: The Field of

Choice,30 was delivered in 1966. The gist of its recommendations was the adoption of the ground of irretrievable breakdown. The trial of breakdown by a court was rejected for two main reasons: one was conceptual, the other logistical. Breakdown was said to be not a ‘justiciable issue’ and not easily triable in a court of law;31 to do so would at least treble the time taken by courts for divorce. Had it been possible to foresee how common divorce would become, this objection would have been even stronger. The Commission’s suggestion instead was to institute a period of separation, on completion of which the marriage would be deemed to have broken down. Preferably, such a period should be reasonably short, such as six months. Here it is that we see the UK considering a basis for divorce recognisable to modern Australians. However, changes were not made to UK divorce law until 1973 and these changes did not go as far as the recommendations of the Law Commission.32

Developing an Australian family law Introduction 1.35 Early colonial and state law followed the UK model discussed above. Indeed, our early family laws adopted the UK approach without departing from it in any material way. This is demonstrated by the relatively quick adoption ‘down under’ of the UK Divorce and Matrimonial Causes Act 1857. When the six Australian colonies federated as states to form the Commonwealth of Australia in 1901, the Commonwealth Constitution conferred on the Commonwealth Parliament a power to make laws with respect to a number of enumerated matters. This was done in s 51, which contained 39 placita, or paragraphs, to which another one was later added by referendum.

Subject matters not conferred on the Commonwealth remained largely within the power of the states. Section 51 gives the Commonwealth legislative power on two relevant topics: (xxi) marriage; (xxii) divorce and matrimonial causes, and in relation thereto, parental rights and the custody and guardianship of infants.

[page 18] This power is expanded by the ‘incidental’ power in placitum (xxxix), which relates to ‘matters incidental to the execution of any power vested by the Constitution’ in the Commonwealth. However, like other powers conferred on the Commonwealth, placita (xxi) and (xxii) are facultative and not mandatory. They enable the Commonwealth to legislate on the subjects conferred on it if it sees fit, but they do not compel it to do so. For the first 60 years of its existence, the Commonwealth did not avail itself of these powers, apart from two or three insubstantial exceptions. As a result, the matters dealt with in placita (xxi) and (xxii) continued to be dealt with under state laws. There were, as a result, six separate legal systems of family law (and two in the two mainland territories). These systems all exhibited a generic similarity to one another. They had a common model in UK law and were administered by courts established in the UK style. 1.36 In spite of their common historical roots, as time went on state laws were to diverge to a considerable extent. For example, by 1959 Queensland had five grounds for divorce, Tasmania nine and there were 13 in South Australia. At that stage, the UK had seven. With three exceptions, these were all fault grounds. Insanity was not a ground in New South Wales; and presumption of death existed as a ground in Queensland, South Australia and Western Australia.

One significant difference existed in South Australia and Western Australia — both jurisdictions had, by this time, a ground of separation without fault. South Australia first introduced this ground in 1938, based on an even earlier provision introduced in New Zealand in 1920; and Western Australia had followed suit in 1945. It was to become the model for the five-year separation ground in the Matrimonial Causes Act 1959 (Cth). Developments in Australia increasingly took a different course from that in the UK. One reason was constitutional. This matter is dealt with in more detail in Chapter 4, but for present purposes we mention some of the basic considerations here.

Matrimonial Causes Act 1959 (Cth) 1.37 From 1959 onwards, the Commonwealth decided to exercise its constitutional powers by enacting first, the Matrimonial Causes Act 1959, and shortly afterwards, the Marriage Act 1961. Both Acts came into full operation in 1961 and 1963 respectively. The effect on the law of marriage was relatively unspectacular, as the changes in substantive law were not great. Moreover, the Commonwealth continued to rely on state officials for dealing with registration of marriage. One change was that children born outside of marriage, ‘ex-nuptially’, were now made legitimate by the subsequent marriage of their parents.33 [page 19] 1.38 In the law of divorce and matrimonial causes, however, the changes were considerable. The Matrimonial Causes Act created an Australian — as distinct from a state — domicile for the purpose of proceedings under the Act; it did not affect domicile for the purposes of any other law. The Act consolidated the laws of nullity and divorce of the states into one legal code which was applicable throughout Australia. To achieve uniformity, the Act aggregated

all the various divorce grounds of the states. As a result, there were now 14 grounds of divorce, where before there had been eight, nine or 12. The Act also covered so-called ‘ancillary’ matters, namely maintenance, property settlements and guardianship, custody and access in relation to the children of a marriage. However, these matters depended, jurisdictionally speaking, on the prior or concurrent existence of proceedings for ‘principal’ relief, namely divorce, nullity of marriage or declarations of validity: see Chapter 6. Where there were or had been no such proceedings for principal relief, the federal jurisdiction was not invoked. So, for example, parents not divorcing could not use the Commonwealth legislation to deal with their parenting or property disputes. Those ancillary matters not falling within federal jurisdiction remained matters of state law. Inconvenient though this jurisdictional dichotomy might have been, that inconvenience was mitigated by the fact that all family matters under federal law continued to be dealt with by state courts. This result was brought about by the investiture of state courts with federal jurisdiction by the Commonwealth — a timehonoured expedient under s 77(iii) of the Constitution that had been frequently followed in other areas. This avoided the need to create a new and concurrent system of federal courts. 1.39 With the advent in late 1972 of a federal Labor government committed to an ambitious and vigorous policy of legal and social reform, the time was ripe for a further review of divorce laws. The changes of 1959, advanced as they had seemed at the time, were now generally accepted. It was becoming evident that in some respects these laws no longer met the social requirements of the times. The 1959 legislation — which was so confidently characterised in 1968 as having reached ‘a peak of legislative excellence unequalled in the countries which have inherited the English tradition as to marriage and divorce’34 — was now considered not to have gone far enough. No doubt the

consolidation of the law, which the Matrimonial Causes Act 1959 brought with it, set the framework within which further and more radical reforms could be attempted. The incompleteness of the powers conferred on the Commonwealth by the Commonwealth Constitution is a shortcoming that became evident in its [page 20] assumption of power in relation to family law. These matters are discussed in detail in Chapter 4, but in summary the limits of federal legislative power have been largely overcome by the states referring powers to the Commonwealth.

Family Law Act 1975 (Cth) 1.40 The Family Law Act 1975 (Cth) (FLA) was largely the result of the initiative of the first Attorney-General in the Whitlam Federal Government, Senator Lionel Murphy QC, later the Hon Justice Murphy of the High Court. The Act is evidence of an attempt at a radical reorganisation of family law in Australia, although this could be done only within the constraints imposed by the Commonwealth Constitution. Even then, the scope of these innovations was at first cut down by the High Court in 1976 in Russell v Russell; Farrelly v Farrelly:35 see the discussion at 4.32–4.34. The Act’s principal achievements were a reform of the substantive law of divorce and ancillary matters, and the creation of a new federal court — the Family Court of Australia — to administer that law. The abolition of matrimonial fault as a basis for divorce was central to the Act. Underlying it was the proposition that ‘an enquiry into the cause of breakdown was not proper’.36

As a result, all previously existing 14 grounds of divorce were swept away and a single new ground of irretrievable breakdown of marriage took their place.37 The only way to establish irretrievable breakdown was by proving that the parties had ‘separated and thereafter lived separately and apart for a continuous period of not less than 12 months’.38 Proof of such separation set up a conclusive presumption that breakdown had occurred. This, and the administration of the ground, is dealt with in detail in Chapter 6. It is interesting to note that in taking this step Australia has gone much further than the UK. While the only ground for divorce in the UK is irretrievable breakdown of the marriage, this can only be established by proving one of five facts, three of which remain fault-based: adultery, desertion and the behaviour of the other party. Where the parties agree, separation of two years will suffice to prove the breakdown; however, where they do not, five years’ separation is still required.39 [page 21] 1.41 The number of divorces granted in 1975 on the grounds available under the Matrimonial Causes Act 1959 (Cth) was as follows: Ground

Number of divorces

Desertion

8888

Adultery

8023

Separation for five years

3390

Cruelty

2615

Drunkenness or drugs

295

Refusal to consummate

43

Frequent convictions

13

Imprisonment

9

Insanity

5

Non-compliance with restitution decree

1

The above figures show that there were 23,282 divorces based on these 10 grounds. The total number of decrees granted was 24,257. Of that figure, a further 17 decrees were based on one of the four remaining grounds under the Matrimonial Causes Act. The remaining 958 divorces were based on a combination of two or more of the available grounds. Not surprisingly, the new ground of divorce saw the number of divorces increase dramatically in 1976 and for the next few years, as the backlog of couples wanting to divorce washed through the system. 1.42 One category of matrimonial causes that was rationalised by the FLA was nullity of marriage. Under the Matrimonial Causes Act, as indeed under any earlier matrimonial causes law, there were always two categories of nullity: void and voidable marriages. A void marriage, as discussed previously (see 1.8), was absolutely void ab initio because of some fundamental flaw, as if it had never existed. An example of this was the purported marriage of a person who was already married, or of parties who were close blood relations. A voidable marriage, on the other hand, was one that was affected by some vitiating factor that was unknown to the complaining party at the time of the marriage. Examples were inability to consummate the marriage and, in a wife, being pregnant to another man. On discovering the existence of such a flaw, the complaining party could have the marriage set aside, though only from the [page 22]

time of the decree.40 Nullity of voidable marriages had many of the attributes of divorce. It was a remedy that presupposed a breakdown of the relationship, requiring proceedings to be taken within a certain time. With the introduction of the FLA, the category of voidable marriages was abandoned. 1.43 The remaining ground for a declaration of nullity, namely a void marriage, continued to rely on the existence of some vitiating factor at the time of the ceremony that prevented a valid marriage from being formed. Such factors related to capacity (age, prior subsisting marriage, prohibited relationship), to essential formalities affecting the ceremony, and to the absence of true consent owing to fraud, duress, mistake or mental incapacity. These categories were retained, except for a modification of the prohibited relationships. The former prohibited relationships of affinity (ie relationship by marriage: see 1.9–1.10) were removed.41 At the same time, the elaborate categories of consanguinity (blood relationship) were simplified.42

The creation of the Family Court of Australia 1.44 The FLA introduced another major reform by creating the Family Court of Australia.43 The earlier expedient of vesting federal jurisdiction in matrimonial causes in state Supreme Courts under s 77(iii) of the Constitution had worked well for many years, as it had in other areas of law. It had been particularly useful at the inception of the Commonwealth in 1901, when a small population of 3.75 million, dispersed over a whole continent, did not warrant the duplication of a complete judicial hierarchy, to coexist side by side with the already existing judicial systems of the states. However, with the growth in population and the considerable increase in workloads of all Australian courts, the creation of a specialist jurisdiction no longer seemed such an unnecessary extravagance as it would have appeared in 1901. In addition, there

were more substantial reasons that made a specialist family court seem attractive. New attitudes, particularly in dealing with children involved in legal proceedings, called for modifications in traditional court procedures. The association of state and territory Magistrates’ Courts, for instance, with petty crime and police prosecutions, as well as their often antiquated facilities and sordid surroundings, had come to be regarded as an unfavourable setting for the resolution of intimate and sensitive family problems. [page 23] Moreover, the expertise required in criminal or common law litigation was not always the best qualification for a family lawyer. There was also the growing realisation — not always perhaps articulated by lawyers themselves, but recognised nevertheless by the reluctance of many of them to work in this jurisdiction — that this was a field calling for different qualities. The concern of the law with rights and obligations, which had been the dominant theme in family law, was now being tempered with modern insights derived from the behavioural and social sciences. The participation of social workers, psychologists and marriage counsellors was seen to an increasing extent as indispensable, or at least desirable in the work that the courts had to perform. The concept of a ‘family court’, a term that was often vague and used without any clear idea as to how such a court would function, was coming to be used and written about — a clear sign that people felt such an institution was needed. 1.45 The FLA set up the Family Court of Australia as a federal superior court of record, consisting of a Chief Justice, Deputy Chief Justice and other judges.44 The court has a general division and an appeal division, with an original and an appellate jurisdiction. The Family Court has jurisdiction in all matters under the FLA, and in most matters under the Marriage Act 1961 (Cth).

The jurisdictional limitations to which the Family Court is subject by reason of the allocation of powers in the Constitution (see Chapter 4 for a detailed discussion of this) do not apply to the federal territories (the Australian Capital Territory and the Northern Territory). The Act also applies to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.45 Commonwealth powers in territories are plenary by virtue of s 122 of the Constitution. Accordingly, the Family Court’s jurisdiction in these territories extends to matters that in the context of a state would be closed to the Commonwealth. These matters include adoption and the status of an ex-nuptial child.46 As all states except Western Australia have referred their powers in relation to ex-nuptial children (one of the key areas not within Commonwealth legislative power) to the Commonwealth, the limitation with respect to children who are not children of a marriage has become increasingly irrelevant. This is discussed in Chapter 4. 1.46 The FLA went a long way towards creating a court that was designed specifically for the task for which it was set up. The traditional trappings and ceremony were reduced to a minimum; there is a general requirement that the court shall proceed without undue formality, and that proceedings should not be protracted.47 Present practice is that judges do not wear wigs and only robe for final hearings (in other words, not for interlocutory and other matters preceding [page 24] the final disposition of a matter). In addition, the provisions dealing with practice and procedure have been designed to simplify as far as possible the forms and formalities of those proceedings.48 Counter staff give advice to parties, many of whom prepare their own applications and appear for themselves. Indeed,

research has shown that at first instance, about 35 per cent of people represented themselves at some point in the proceedings.49 The court has had counselling and welfare staff for many years, and now has family consultants (see 2.43–2.46), whose task it is to assist both the judges and the parties in a variety of ways. 1.47 It was originally part of the new image of the court that the bench should be composed of judges who were not only lawyers, but were also well suited to the specialised work they were having to perform. Section 22(2) of the FLA therefore provides that a person shall not be appointed as a judge unless he or she is or has been a federal or state court judge, or has been a legal practitioner for at least five years,50 and ‘by reason of training, experience and personality … is a suitable person to deal with matters of family law’.51 While the first appointment requirement is familiar in statutes dealing with the qualifications of persons appointed to the judiciary, the second was an innovation and is designed to ensure that judges of the Family Court have the experience and the expertise required in this rather specialised jurisdiction. 1.48 On the commencement of the FLA on 5 January 1976, the Family Court of Western Australia was established by the government of that state. As mentioned in Chapter 4, s 41 of the Act enables any state to establish its own state family court at the expense of the Commonwealth,52 but only Western Australia has taken up the option. The Family Court of Western Australia is invested with federal jurisdiction under the FLA. All judges of the Family Court of Western Australia have been given dual commissions and can sit on the Family Court of Australia, including on appeals. While the existence of a state family court presents technical issues [page 25]

of jurisdictions, and occasional discrepancies in the law of the two jurisdictions, by and large to users of the system the Family Court presents as a national uniform specialist court, tailored to the needs of family law cases.

Families in Australia: the modern social context The modern family 1.49 As we have seen from our historical introduction above, Australian family law has developed based on particular and culturally specific notions of what a family is, and how it should be protected. While there has never been any definition of ‘family’ in our legislation, the natural result of the setting in which the law has developed has seen a particular emphasis on families arising through marriage. The importance our society attaches to the notion of ‘family’ and marriage is expressly recognised in s 43(1) of the FLA itself, especially in paras (a) and (b). Paragraph (a) affirms ‘the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life’, and para (b) emphasises: … the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children.

The same attitude is seen in a wider international context in the International Covenant on Civil and Political Rights, which has been adopted by Australia under the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Article 23 affirms: (1) that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’; and

(2) that ‘the right of men and women of marriageable age to marry and to found a family shall be recognised’. 1.50 In Australia, the Royal Commission on Human Relationships reported in 1977 on a large number of issues concerning family and other relationships. One of the commissioners was the first Chief Justice of the Family Court, Elizabeth Evatt. In its introduction, the Commission develops the definition of the family in the following terms: Of all our institutions, the family is the most influential in terms of human relationships. It is universal, being found in both sophisticated and primitive societies as far back as our knowledge takes us. Though it has had and will have many different forms, it is unlikely that it will ever disappear, nor would we wish it to do so.53

[page 26] However, the Commission also said that the family means different things to different people.54 For many, still, the modern perception of the typical family is that of the nuclear family: formed by a man and a woman living together and bringing into the world and rearing one or more children to adolescence or adulthood. In fact, it would be difficult — perhaps impossible — to define what is meant by ‘family’ in a modern context. In a 2012–13 survey of Australian families, the Australian Bureau of Statistics (ABS) adopted the following definition of family: Two or more persons, one of whom is at least 15 years of age, who are related by blood, marriage (registered or de facto), adoption, step or fostering; and who are usually resident in the same household. The basis of a family is formed by identifying the presence of a couple relationship, lone parent–child relationship or other blood relationship.55

The ABS survey provides an interesting insight into modern Australian families: Of the 8.9 million households in Australia, 74 per cent housed

families and in 96 per cent of cases this was a single family. At 44 per cent, the proportion of couple families with resident children has decreased from 48 per cent in 1997 when the survey started. Of all families, 14 per cent had only one parent living with a child or children. Of all families, 58 per cent had resident children. Of all families with resident children aged 17 or under, 81 per cent included couple adults — this is up from 78 per cent in 2003. Of the 5.2 million children living in Australian families, 21 per cent had parents living elsewhere (79 per cent of which were fathers, down from 81 per cent in 2009–10); a figure that has stayed relatively constant since 1997. Seventy-seven per cent of these children lived with a sole parent, 10 per cent in stepfamilies and 12 per cent in blended families.56 Of the children not living with a parent, 45 per cent saw that parent at least fortnightly (this figure has remained relatively stable since 1997, though it was 48 per cent in 2009–10), while 26 per cent rarely saw the parent (this figure had been declining since 1997, but has increased from 24 per cent in 2009–10). Of the 17.6 million adults living in private dwellings, 64 per cent were in a registered marriage (52 per cent) or considered themselves to be in a de facto marriage (12 per cent). Less than 1 per cent (23,714) of couples were same-sex. [page 27] This data shows that, while the forms of family are diversifying, many families still fit the traditional notion of a family. More often than not, those families are still based on marriage. However, it is important point to note that marriage is no longer seen by many, or by the law, as essential to the formation of

families. As we shall discuss later in this chapter, unmarried partnerships have become accepted and are common, and illegitimacy of children has lost its social stigma. 1.51 While family law legislation does not attempt to define what it means by ‘family’, it must define the circumstances in which rules apply to a group of people. We shall return to this issue in detail throughout this book and it will become obvious that one of the modern challenges for family law is determining to whom the law applies. For present purposes, it could be said that Australian ‘family law’ regulates families based on marriage and families based on cohabitation without marriage, including samesex couples; however, it also regulates other groups of people connected by children.

Families based on marriage 1.52 ‘Marriage’, said Lord Penzance in 1866, is ‘the voluntary union for life of one man and one woman to the exclusion of all others’.57 This statement is now reflected in the definition of marriage that was added to the Marriage Act 1961 (Cth) in 2004.58 A paraphrase of that definition is also used by civil marriage celebrants when celebrating a marriage.59 As a description of marriage, however, it is patently false. At the time of Lord Penzance’s dictum, divorce had been available for nine years. The ‘lifelong’ character of marriage therefore, even 120 years ago, was a romantic ideal rather than a description of a legal incident or characteristic of marriage. It mirrored no doubt the expectations of the parties and of society as a whole; ideals to which marriage aspired and was believed to conform. Dissolution was still so exceptional in nature that it hardly detracted from the applicability of the dictum. However, the universality of the expectation has since been subjected to a process of progressive erosion. Similarly, the notion of the exclusiveness of the union

has not prevented the formation of competing or concurrent unions by either or both parties. According to the late Dr Finlay, it was: … [t]he introduction of divorce in 1857 [that] laid the foundation for the eventual perception of marriage as a transient relationship. Dissolubility was introduced in response to social pressures. Whereas it had been thought that marriage could be protected only by rigorous enforcement, it came to be realised

[page 28] that a too rigid approach would lead to it being by-passed. The evolutionary process was characterised by the abandonment of legal sanctions against de facto dissolution or marital immorality. The high water mark of this trend came in 1943 when the House of Lords acknowledged that it might be in the public interest to dissolve a marriage that had broken down. … [O]ne is entitled to conclude that the present phase in the evolution of domestic institutions in Western society is characterised by increasing coalescence in formal and informal marriage.60

1.53 So, without attempting to distinguish between cause and effect with regard to the increasing popularity of de facto marriages, we must recognise the changes to the character of marriage as an institution. Hutley JA of the New South Wales Court of Appeal drew attention to this phenomenon in Seidler v Schallhofer:61 The marriage which the law now provides is of an entirely different kind. It is an arrangement terminable by either party on one year’s separation, really one year’s notice, as the separation may be fictitious. Though the Family Law Act 1975 provides [there follows a reference to s 43(1)(a) and (b) regarding the need to preserve and protect the institution of marriage and of the family], this can only be regarded as propaganda contradicted by the substantial provisions of the Act which, except for the creation of counselling facilities, are directed to the speedy termination of the married state …62

As noted above, in 1976, when the FLA introduced the single ground for divorce — irretrievable breakdown of marriage — there was a sharp spike in the number of divorces. The next three years saw a steady decline in that number, and since that time the

proportion of the population divorcing has more or less stabilised, though at a higher level than before the new ground for divorce. However, while the crude rate of divorce (ie the number of divorces per 1000 people) may have plateaued, the crude rate of marriage ontinues to fall, which means that the proportion of married couples divorcing has increased.63 Roughly a third of marriages entered into in the 2000–02 period are predicted to end in divorce; and of those who divorce, roughly half will remarry.64 Increases in the proportions of babies being born outside registered marriages and increases in cohabitation provide evidence that registered marriage as the traditional social institution for family formation is declining.65 [page 29] As rates of marriage have declined, the number of people who never marry has increased. Based on relevant statistical data, if trends continue, 31 per cent of men and 26 per cent of women will never marry.66 Australians are also marrying much later (the median age for men peaked in 2006 at 31.6 and in 2013 for women at 29.5; compared to 25.6 and 23.5 respectively in 1986). The median duration of a marriage to separation in 2008 was 8.8 years, with the duration to divorce being 12.3 years.67 In 2010, 79 per cent of married people had lived together prior to marriage.68 So, marriage is still popular. However, Australians are marrying less and later, they usually live together first, and they have a high likelihood of divorce and remarriage. These statistics highlight the significance of family law, as more people are likely to be impacted by laws that govern separation and divorce.

Families based on cohabitation — ‘de facto’ marriage

1.54 By 2009–10, the ABS recorded that 11 per cent of the population aged over 18 (1.9 million people) were living in a de facto marriage (46,300 of whom were in a same-sex couple).69 Whereas in 1975 only 16 per cent of marriages were preceded by cohabitation,70 by 2010 the figure had risen to 79 per cent. However, cohabitation without marriage in Australia, usually now referred to as a ‘de facto relationship’,71 has always been a feature of our social organisation. In Australia’s convict beginnings, unions were formed that had all or most of the attributes of legal marriage except the legal status; the situation in the UK had not been very different.72 1.55 While de facto relationships have thus always formed part of the social fabric of Australian society, they were originally a phenomenon outside the cognisance of the law. When discussing de facto relationships in the Australian [page 30] context we are, of course, in the realm of state legislative competence. Family law as we know it today was not a familiar rubric of law at the time of Federation in 1901. Thus, the Commonwealth was given power in relation to marriage, divorce and matrimonial causes, while the ordering of private legal relationships — particularly as affecting private property rights — remained with the states.73 Until recently, partners in a de facto relationship had little or no financial or economic protection. Historically, once a woman (as was usually the case) became dependent on her male partner, the legal remedies available to her, if he abandoned her, were strictly limited. With one exception, the maintenance legislation of the several colonies before Federation extended only to legal wives and children, though there was some legal liability to pay for child-bearing expenses resulting from ex-nuptial pregnancy.

Likewise, the father of an ex-nuptial child was liable to pay maintenance for that child assuming, of course, that paternity could be proved or was admitted. The exception was Tasmania, where that state’s now repealed Maintenance Act 1967 provided for maintenance being payable to a woman who had cohabited with a man for at least 12 months and who had been left by him without adequate means of support.74 1.56 Discrimination against de facto unions was always at its most unjust where children became its victims, since they had no say whatsoever in the matter of their natal status. It was not so very long ago that the term ‘bastard’ ceased to be the official designation of an ex-nuptial child. That term’s pejorative connotation in English usage in Australia remains a palpable reminder of the odium with which the status of ex-nuptiality was formerly commonly regarded. By the 1970s, status of children legislation was being enacted to remove the ‘legal disabilities of children born outside wedlock’. The prototype for the Australian legislation was the Status of Children Act 1969 (NZ), which was followed in Australia within the next decade. The first state to enact legislation was South Australia with its Family Relationships Act 1975. That Act dealt with the status of children, but it also had something to say about de facto couples. It created the concept of the ‘putative spouse’, but the consequences of that seemingly revolutionary new legal category remained largely unspectacular. Its provisions were, in the main, limited to succession: testator’s family maintenance, fatal accidents and superannuation.75 1.57 A significant and radical development came in New South Wales with the commencement of the Property (Relationships) Act 1984 (formerly the De Facto Relationships Act 1984) on 1 July 1985. That Act followed the recommendations of the New South Wales Law Reform Commission’s 1983 De Facto Relationships

[page 31] Report in extending to de facto partners remedies in relation to the division of property on separation. Such was the increasing incidence of de facto relationships and the perceived unfairness caused by lack of access to the FLA, that by 2008 all the states and territories had put in place comprehensive schemes for extending to de facto partners a degree of protection that in some ways resembled that which the FLA had set up for married partners. Indeed, the relevant scheme in Western Australia is virtually identical.76 More recently, all states and territories, except Western Australia, have referred their power in this regard to the Commonwealth. As a result, the Family Court in those jurisdictions can now hear de facto property and spousal maintenance disputes, and will apply the same principles as for married couples. Both opposite and same-sex de facto couples can utilise this legislation.77 This topic is covered in more detail in Chapters 10 and 12–15. 1.58 In addition to the legislation referred to in 1.57 above, there has been a parallel development affecting unmarried couples, and that is the introduction in many Australian jurisdictions of ‘relationship registers’.78 Some couples may choose not to marry, and some may not be able to; however, they still may wish to formalise their relationship by registration. As samesex partners cannot marry, this avenue may be of particular importance to such couples, and so we discuss the matter further at 1.60ff. In addition to any symbolic significance for a couple in registering their relationship,79 there is a practical benefit: it provides conclusive proof of the fact of the relationship. This is important for the purposes of family law as, in the absence of such proof, determining whether a particular couple is in a de facto relationship can be a very difficult matter. 1.59

In recent times, therefore, the discernible tendency has

been to play down the significance of marriage in the formation of families, and to look at the realities of life in determining whether a family relationship exists, beginning with the elimination of the status of the illegitimacy of children and continuing with the recognition of de facto relationships between partners, both opposite and same-sex. Some jurisdictions have even gone so far as to extend relief to [page 32] domestic relationships that are not marriage-like, but which involve a high degree of interdependency.80

Same-sex couples 1.60 As indicated at 1.57, on separation, same-sex couples can access the property and spousal maintenance provisions applying generally to de facto couples. However, in recent years, there have been calls for the recognition of same-sex marriages, on the basis that it is discriminatory to deny same-sex couples the right to marry. In 1997, the former Chief Justice of the Family Court of Australia, the Hon Alastair Nicholson, after recognising that ‘the concept of “marriage” carries a meaning which is powerfully infused with tradition, history and religion, even more so than the concept of “family”’,81 pointed out that Australia then lagged behind other countries, such as Canada, in the formal recognition of same-sex relationships.82 Like a great many other countries, Canada now permits same-sex marriage, as does the UK. An Irish referendum on the legalisation of gay marriage in 2015 saw a 62 per cent ‘yes’ vote. The United States Supreme Court has also recently ruled that banning same-sex marriage contravenes constitutional protections of equal treatment under the law.83 Despite the fact that polls indicate that the majority of Australians support same-sex marriage, same-sex couples in Australia may not

yet legally marry and for this reason we have not discussed this topic in detail in the chapter on marriage: Chapter 5. Rather, as we are talking here about the evolution of what we now call family law and its relationship to the family and society, we will include some discussion of the attempts in Australia to legislate to permit same-sex marriage. 1.61 This topic is also covered in Chapter 4, as legislating to permit same-sex marriage raises issues as to the division of constitutional powers between the states and the Commonwealth. Regardless of the views that have been expressed that favour, or oppose, same-sex marriage,84 the fact remains that the recognition of such a relationship federally as a marriage presupposes an acknowledgment that it comes within the marriage power of the Commonwealth. [page 33] The following comments of McHugh J, in the 1999 case of Re Wakim; Ex parte McNally,85 show that there has been uncertainty in this regard: … many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered … in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.86

In 2004 the Marriage Act 1961 (Cth) was amended by the insertion of a formal definition of ‘marriage’ (see 5.4), which was limited to opposite-sex couples; however, this did not answer the question as to where the jurisdiction lies to legislate for same-sex marriage.87

1.62 While Federal Governments have shown a disinclination towards permitting same-sex couples to marry, the same cannot be said for the states and territories. But uncertainty as to the meaning of the word ‘marriage’ in the Constitution has cast doubt on whether there is a residual power to enact legislation governing same-sex ‘marriages’. Attempts to legalise same-sex marriage in both Tasmania and the Australian Capital Territory have failed, with the High Court ruling in 2013 that the most recent legislation enacted in the Australian Capital Territory was invalid on the basis that it was inconsistent with the Marriage Act 1961 (Cth).88 This case is further discussed at 4.3. After an earlier failed attempt to legalise same-sex marriage, the Australian Capital Territory Government introduced a form of civil partnership with an ‘administrative ceremony’, rather than a legal ceremony.89 The Civil Partnerships Act 2008 (ACT) came into effect on 19 May 2008. The following jurisdictions also have relationship registers: New South Wales, Queensland, Tasmania and Victoria.90 [page 34] The net result is that civil partnerships have been equated, legally, with opposite-sex de facto relationships. This draws a sharp distinction, as opposite-sex couples can choose to marry; same-sex couples cannot. This fundamental difference in legal status of relationships has attracted considerable criticism. Sifris and Gerber, while recognising that the Federal Government has gone some way to reducing the instances in which same-sex couples face discrimination under Australian law, argue that ‘the inability of same-sex couples in Australia to marry represents one of the final bastions of discrimination perpetrated against such couples, and remains a battleground for equality’.91 They go on to respond to the main arguments raised against same-sex marriage. The notion that marriage has a historical tradition that should be

maintained is answered with details about the way in which the so-called ‘institution’ of marriage has evolved over time and according to the jurisdiction. It is noted that the history of marriage has had little to do with love and affection (as we saw earlier in this chapter); this is a modern concept, but one that is intrinsic to the current notion of marriage and which argues in favour of the legalisation of same-sex marriage. The notion that children should be raised by a mother and father is countered with the fact of legal acceptance of same-sex parenting through the availability of assisted conception procedures and surrogacy to same-sex parents. Sifris and Gerber go on to suggest that denying the legal parents of these children the right to marry is not in the best interests of those children. 1.63 The Federal Labor Government changed its platform in favour of same-sex marriage in 2011, with Prime Minister Gillard deciding that the matter should be one of conscience for Labor politicians. That remains the position of the current Labor opposition party. Conversely, the Federal Liberal-National Coalition Government is opposed to same-sex marriage, and has refused to allow parliamentarians a conscience vote. There is presently discussion about holding either a plebiscite or a referendum on this issue in the next term of government.

Children as the basis of family law regulation 1.64 To date in this chapter we have spoken of families (in so far as they are governed by family law) in which there is some ongoing, interpersonal connection between two adults. However, many people interacting with the family law system do so because of the need to resolve an issue about a child. Often, that might be some kind of disagreement as to how or where a child should be raised. Such a dispute may be between the biological parents of the child. But even if it is, those parents may not have had any ongoing connection with each other, other than the act giving rise

to conception. Thus, they may never have lived together, shared parenting of their child or in any other way have formed what we might think of [page 35] as a family. The dispute may also be between people who are parents not because of biology, but because of the law; for example, adoptive parents, or the legal parents of a child resulting from the utilisation of assisted conception procedures: see 7.15ff. Further, a ‘parenting’ dispute over a child does not have to be between the child’s two parents. All of the following examples are matters that would be dealt with in the Family Courts: a dispute between a grandparent and a parent as to the former’s contact with the child; a dispute between a surrogate and the parents who commissioned the surrogacy; a dispute between a child and their parent/s as to the contact that child should have with either parent; and a dispute between two relative adults about where an orphan child should live. However, even this does not represent the limits of the power of the Family Court to hear matters concerning children. Section 67ZC of the FLA extends the jurisdiction of the Family Courts to ‘matters relating to the welfare of children’. Thus, a decision as to whether a disabled female child may be sterilised, for example, is one falling within the purview of the Family Court: see 8.117ff. So too is the question of whether a child is sufficiently mature to consent to sex-reassignment surgery (see 8.124ff). Chapter 4 explains in more detail the jurisdiction of the Family Court and the question of when a matter concerning a child falls within the jurisdiction of the FLA.

1.65 As the foregoing shows, modern Australian family law regulates a broad range of family formations and, in the case of children, has an extremely wide scope. The obvious advantage of the expansion of family law in this way is that it reduces the opportunity for there to be arbitrary differences in the law according to where someone lives or whether they choose to marry or not, for example. Moreover, it ensures the consistent application of laws to all children. In addition, it ensures that a specialist court, with targeted resources, is available to a wide range of families. The corresponding challenge, as we suggested at the outset of this chapter, is that at times it is difficult to determine when the laws apply; for example, identifying a marriage is simple, whereas the question of whether a couple are in a de facto relationship can be exceedingly complex. Nonetheless, it must be recognised that Australian legislators have come a considerable way in achieving uniformity in this area of law.

Family violence and family law 1.66 While family formations may be changing, one constant is the fact that many family members are victims of violence perpetrated by other family members. However, what has changed in recent decades is the level of societal concern about the prevalence of family violence and the recognition of the inadequacy [page 36] of the law’s response. Family violence is, of course, a criminal matter. It is also, as we have indicated, ‘core business’ for the family courts; studies in recent years confirm the high proportion of cases involving allegations of abuse of a family member (see

further, 13.1). It is perhaps not surprising, therefore, that the Family Court has played a role, along with feminist commentators, law reform bodies and researchers, in bringing about a new approach to the analysis of the problem. 1.67 An important conceptual advance in understanding violence in families has been the recognition of the link between violence and inequality. A violent relationship is an extreme example of a power imbalance between the individuals concerned. Moreover, a legal system that fails to acknowledge the seriousness of violence committed by one family member against another further compounds the disempowerment of the victim. A victim thus suffers inequality both within the relationship and in access to the legal system. 1.68 In 1993, the Australian Law Reform Commission (ALRC) was given an important reference on the principle of equality before the law. The reference was to have regard to Australia’s obligations under international law, including Arts 2 and 26 of the International Covenant on Civil and Political Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women. The ALRC’s work on the reference immediately revealed the extent of violence experienced by women in Australia and their disempowerment in the legal system. In an interim report, it was said: All over Australia women came to the Commission to explain how the legal system had failed them. Some spoke as professionals on behalf of their clients, others came bravely to relate their own experience in the hope that other women may be spared … Women told how the horror of the violence against them from their partners and ex-partners or from an assailant had been compounded by the law’s failure to protect them. They complained of the lack of services to meet their needs, of ineffective legal remedies and of their humiliation by a system of justice that they perceived as trivialising their injuries and disbelieving them. The accumulated experiences of the women shocked and moved members of the Commission and imbued them with a sense of the urgency of the need for change … The Commission knew that violence was a serious problem for women but the intensity and uniformity of the women’s submissions brought home to the

Commission that the link between women’s inequality and violence was fundamental. The legal system’s tolerance of violence against women underwrites women’s inequality before the law. Women cannot be equal until the legal system responds effectively to violence and until women are treated as

[page 37] equals, violence against them will not be reduced. The experience of violence is in itself disempowering for women and impedes their access to legal services.92

Subsequently, in the final report, the ALRC stated that ‘women’s experience and fear of violence constitute a significant aspect of gender inequality’93 and ‘violence is used as a means by a man to exert power and control over his female partner’.94 The ALRC was not the first to identify violence with inequality; academic commentators had done so for some years.95 The ALRC’s distinctive contribution was to raise the general public and government awareness of the issue and to act as a mouthpiece for the views of women across Australia. 1.69 The second issue highlighted by the ALRC in the course of its reference on equality before the law was the impact that violence has on women’s access to the legal system: Women’s experiences of violence indicated the difficulties women face in obtaining justice … From the material contained in submissions it appears to the Commission that many women have a real and urgent need for the law to protect them from violence. Violence is also the issue where they believe the law is most likely to let them down … Submissions … reveal that women’s attempts to seek the protection of the law are fraught with obstacles. Their problems begin with the attempt to find accurate information. After that, when women try to enforce their rights they undergo further frustration as they encounter in turn police, lawyers, prosecutors, magistrates or judges … they remember more bitterly their treatment in the legal system than the original mistreatment from their assailant.96

Victims of violence are deterred from pursuing legal remedies (including protection orders, injunctions, child residence, child support, property division and maintenance) not only by fear of

the violent partner, but also by the failure of the legal system to give credence to allegations of violence:97 Violence directly impedes women enforcing their legal rights through its destructive impact on their personal confidence and because they may fear

[page 38] retaliation … Many women considered that they were not believed by lawyers, Family Court counsellors and judges … These attitudes ignore the nature and effects of abuse on the woman and further disempower her.98

Disempowerment in access to justice is itself an inequality issue: Access to justice and violence against women are recurrent issues which frequently arise together … Submissions portray violence as a regular part of life for large numbers of women in Australia and one of the main complaints is how the legal system responds … [W]hen women seek access to justice they are often seeking protection from violence. Freedom from violence cannot be separated from women’s equality and their access to justice … The links between inequality and violence are so strong that women’s equality cannot be ensured unless violence is addressed.99

1.70 This is not to suggest that men do not experience family violence or that they do not make claims of such violence in family court disputes. Evidence indicates that men also frequently allege they are the victims of violence in the course of parenting disputes. Indeed many men feel, like women, that their claims of violence are not taken seriously in court.100 All victims of violence deserve legal protection and to have their claims treated seriously in the family courts. However, in considering how the legal system should respond to the problem of violence it must be understood that the context of family violence is very important. Indeed, in this regard, some family law decision-makers have begun drawing on research from the United States101 that categorises intimate partner violence to highlight its different nature in different situations. Both the Family Court of Australia and the Federal Circuit Court have published best practice principles,102 and these also refer to this research literature. The research, though subject

to some criticism, suggests that intimate partner violence can occur in a wide variety of situations and can be very different in nature. So, for example, ‘coercive controlling violence’, which involves a ‘pattern of emotionally abusive intimidation, coercion and control coupled with physical violence’ may be very different to ‘situational couple [page 39] violence’, which is much more common, often much less severe and reflects a response to a particular situation or conflict. However, within these categories, men and women experience violence very differently. Coercive controlling violence is primarily perpetrated by men against women. While men and women appear to engage equally in situational couple violence, women are more likely to be seriously injured and to be fearful of their partners. Another nominated category of violence, ‘violent resistance’, consists primarily of women resisting, or reacting to, coercive controlling violence by men. Thus, it can be argued that the gendered nature of family violence — that is, the different ways in which men and women experience family violence — is part of the broader picture of men’s violence towards women arising out of gender inequality.103 Australian statistics confirm that men are the main perpetrators of violence, both against men and women; they also show that women suffer the most significant sexual and family violence at the hands of men. Thus, 83 per cent of all sexual assault victims are women.104 While men, on average, are assaulted more than women, women are more than twice as likely to be assaulted by a family member, whereas men are more likely to be assaulted by a stranger.105 Men are more likely to kill someone (87.2 per cent of such offenders are male) and are more likely to be killed than are women (63.2 per cent of such victims are male). However, men are most likely to be single and to be killed by a friend or

acquaintance following an argument preceded by alcohol consumption. Women on the other hand are more likely to be married or in a de facto relationship and to be killed after a domestic altercation.106 By and large, men are the predominant perpetrators of violence and, in particular, serious violence; while men are also violent towards other men, the ability to exercise power and control over the women and children in their lives has led to a general acceptance that violence in the home has a gendered nature, and so policies developed to address the problem must recognise and account for that fact. It is because of the recognition of the gendered nature of violence that the Federal Government has developed a national plan to reduce violence against women and children.107 1.71 A third advance in the analysis of family violence has been the acknowledgment in recent years that it is pervasive and has significance in many [page 40] aspects of family law. Violence is not something to be confined, conceptually, to the realms of criminal law, injunctions and protection orders; nor should its discussion be limited to a discrete chapter in a book on family law. The effects of violence must be given proper recognition in parenting disputes, for property division and maintenance, and in the context of child abduction. In the past, criticisms have been voiced of the Family Court’s failure to take violence seriously in the areas mentioned above. The Family Court’s approach was attributed in part to an overzealous desire post-1975 to eradicate considerations of fault from all proceedings under the FLA.108 To quote again from the ALRC: Violence forms a backdrop to many of the cases that come to the Family Court, such as custody and access matters and property disputes. The Commission

received many submissions that evidence of violence against a spouse is often excluded or discounted at different stages of the legal system and that the Family Court often does not give proper weight to the existence and effects of violence.109

1.72 In the decades since the ALRC report, there have been considerable changes in both the way Family Court decisionmakers approach cases involving family violence and in the legislation itself. There is clearly a much stronger legislative and judicial commitment to protection from violence than was seen 20 years ago. In this book, we discuss the current provisions and cases dealing with family violence as they relate to parenting disputes (see 9.28–9.39), property disputes (see 14.37ff) and child abduction (see 8.157). Also, Chapter 3 outlines in more detail the various ways in which state and federal governments have addressed the broader issues of family violence and child abuse. However, the way the government has responded to family violence concerns continues to be the subject of significant debate in modern Australian family law. For that reason we have outlined briefly below the major themes of that debate. 1.73 One of the most contentious issues has been the way family violence is treated in parenting disputes. In this regard, the initial challenge was to ensure that decision-makers appreciated the relevance of family violence and its impact on women and children to the making of a parenting order. For example, it took [page 41] some time for judges to appreciate that a child does not need to witness, or be a direct victim of, family violence to be adversely affected by it. A second major challenge has arisen from the tension between trying to balance the need to ensure that women and children are protected from violent men, with the desire to encourage parents who are separated to share parenting, so that children can maintain meaningful relationships with their fathers.

This latter issue is particularly difficult because family courts are often presented with inadequate evidence about family violence and, even when all relevant evidence is presented, true family violence claims can be very difficult to establish. Moreover, there is a perception (unsupported by evidence) that false family violence allegations are routinely used by mothers tactically in parenting disputes.110 Against this backdrop, one can imagine the difficult task facing family law decision-makers. 1.74 Before there was any direct legislative attention to family violence in the FLA, the early 1990s saw the judges of the Family Court of Australia begin to change their approach and place more emphasis on family violence in parenting disputes.111 The Chief Justice of the Family Court of Australia, Alastair Nicholson, also publicly acknowledged the problem in 1995.112 This was quickly followed by the Family Law Reform Act 1995 (Cth);113 this amended Pt VII, which deals with parenting disputes, extensively. These amendments adopted many of the recommendations of the ALRC in Report No 69, Part I,114 discussed above. Indicative of an increased readiness to recognise violence as a pervasive phenomenon, the effects of which are felt across a wide range of proceedings, was the insertion into s 43 (which declares the general principles to be applied by courts in exercising jurisdiction in any proceedings under the FLA) of a new subsection: ‘(ca) the need to ensure safety from family violence’. Another amendment at this time was to include an express reference in the ‘best interests checklist’ (the list of considerations a court must address in making a parenting order: see 8.57) to the direct and indirect effects of family violence. [page 42] Chief Justice Nicholson observed of the amendments to the best interests checklist as follows:

I welcome the inclusion of this provision, which contains a clear message about the multiplicity of ways in which spousal abuse impacts upon children in a family. For too long the law and its personnel have under-estimated the connection between child and spouse abuse and improperly treated the protection of children and spouses as split issues.115

1.75 Nevertheless, the new legislative provisions attracted criticism almost immediately. First, the Family Law Reform Act did not incorporate all of the ALRC’s recommendations. Not adopted were recommendations for the inclusion of an explicit legislative reference to the inappropriateness of mediation where violence has occurred, and for making breach of an injunction for personal protection a criminal offence. Another issue arose from the fact that a major purpose of the 1995 reforms was to increase the extent to which the court ordered shared parenting. Behrens and others116 argued that a greater focus on shared parenting in the making of parenting orders had the potential to impact negatively on victims of violence; that is, protection from violence would be a secondary concern to decision-makers who would focus on promoting child– father contact. Research on the impact of this first wave of legislative changes has since provided support for this concern.117 1.76 Increasing shared parenting and protection from family violence were both again on the agenda with the next major round of family law reforms, contained in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The tension between these two objectives fuelled continuing debate about whether family law reform was strengthening or weakening protection for victims of violence. We have dealt with the 2006 amendments in more detail in Chapter 8, as part of the background to the current structure of Pt VII of the FLA. However, it is worth noting here that there were some amendments in 2006 that sought to give greater legislative force to the need to protect victims of family violence; a new object for Pt VII of ‘protecting children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence’ was

inserted, and the ‘best interests checklist’ was amended by adding, as the second [page 43] of two new ‘primary’ considerations, ‘the need to protect’ children from abuse and violence. 1.77 However, at the same time, other changes were made that had the potential both to lead decision-makers to place shared parenting ahead of protection from violence and to discourage parents from bringing forward allegations of family violence. The main concern in terms of the balancing of shared parenting and protection from violence was the fact that the other new primary consideration focused on maximising shared parenting (s 60CC(2) (a)), and there was nothing in the Act that prioritised one primary consideration over the other; in other words, protection from violence was not required to be accorded more weight than promoting shared parenting. Two other provisions in particular were criticised as being likely to inhibit disclosures of abuse. The first was a provision making a costs order against a parent mandatory where they made a false allegation: the old s 117AB. As violence allegations can be very difficult to prove, it was felt this would discourage the making of true claims, as well as false ones. This provision was introduced because of the perception (referred to above) that mothers routinely lie in the Family Court about violence to stop a child’s contact with their father. There is no empirical support for this claim. However, as the ALRC report and other research has confirmed, it is very difficult for many women both to make and prove true claims of violence. Another amendment that raised similar concerns was the addition to the best interests checklist of a ‘friendly parent provision’: s 60CC(3)(c). This made a parent’s ‘willingness’ to

‘facilitate and encourage, a close and continuing relationship between the child and the other parent’ a relevant consideration. While the court had always considered this factor when making a parenting order, its relevance being obvious in cases where violence is not an issue, provisions of this type had long been criticised in other jurisdictions for having the potential to disadvantage women seeking to limit access where a father is abusive.118 So, despite legislators, the judiciary and politicians continuing to evince a genuine regard for victims of violence,119 critics remained sceptical of the extent to which practical gains had been, or would be, achieved by these legislative provisions. In particular, they questioned whether more recently there had been a move away from the protection of women and children, in favour of acceding to demands for increased father–child contact.120 This is notable in light of empirical [page 44] research predating the 2006 reform, which suggested it was not easy at that time to have contact curtailed on the basis of family violence.121 1.78 Evidence gathered after the 2006 reforms supports the concerns of the critics. The Federal Government became satisfied that victims of violence were being discouraged by the new provisions from bringing forward violence claims, and that shared parenting was being emphasised by decision-makers and other professionals in the system to the detriment of the protection of women and children from violence. The FLA was therefore amended (again) to remove the friendly parent and mandatory costs order provisions, and now provides that, when considering the two primary best interest considerations, greater weight must be given to protection from violence.122

In addition, a much more expansive definition of family violence has been introduced (s 4AB), to recognise generally accepted notions of the broad range of conduct that can amount to abuse (see further, 3.3), including stalking, economic abuse and denying a family member the ability to maintain family and cultural connections. Further, s 4AB(3) now clarifies that a child’s ‘exposure’ to abuse includes the child hearing, seeing or otherwise ‘experiencing’ the effects of family violence. Thus, we can see with this latest round of reforms a genuine effort to prioritise protection from abuse and a recognition of the breadth of family violence. The lesson to be learned from this journey is that the difficulty of protecting victims from violence in the home cannot be underestimated; family violence is a prevalent and persistent problem that must be taken seriously in the resolution of parenting disputes. These latest reforms have not long been in place; in Chapters 3 and 9 we look at the first research findings assessing the impact of the latest attempts to strike the right legislative balance in the resolution of parenting disputes. 1.79 The relevance of family violence to financial proceedings has also been a matter of some debate, though much less so than in the case of parenting matters. We have discussed this in more detail in Chapter 14. In a broad sense, property division orders under the FLA are based on the parties’ respective contributions to both their property and the welfare of the family. Account is also taken of the relative future financial needs of each of the parties. There is no provision in this context that directly refers to family violence. In the absence of any legislative activity in this regard, the last 20 years have seen the Family Court of Australia make advances towards recognising family violence in the context of property proceedings under existing provisions. In particular, it has been established that [page 45]

the contribution a victim of violence makes to the property of the parties and the welfare of the family might be considered to be greater, by virtue of the difficult conditions under which that contribution is made. In theory, this permits a greater share of property to be awarded to that party on that basis.123 In a series of articles that build on earlier critiques,124 Middleton has considered the varying approaches to accounting for family violence in property disputes and concludes that more needs to be done: Empirical evidence collected during the 1990s establishes that a woman’s experience of domestic violence puts her at a disadvantage when it comes to the division of matrimonial assets upon relationship breakdown. The response of the Family Court during the latter half of the 1990s was to bring domestic violence into account in property proceedings as an aspect of the contribution enquiry. However, the contribution-based approach to domestic violence has done little if anything to improve property outcomes for victims of domestic violence. There can be little doubt that giving legislative emphasis to the potential relevance of domestic violence in [assessing a party’s future needs] … would go at least some way towards improving property outcomes for victims. At the very least, it should be viewed as part of a wider solution, which may call for a combined legal, political and social response.125

So, as we can see, family violence is recognised as a significant factor in a wide range of family law matters. It is this fact, and the prevalence of family violence, that makes it important to address this topic at the outset. We will return to considering family violence in more detail as it relates to specific topics in later chapters and as a separate topic in Chapter 3. [page 46]

The psychological impacts of relationship breakdown 1.80

For many people interacting with the family law system,

they will be encountering a complex legal process at a time when they are undergoing significant emotional stress. This is one reason that family courts are specialised, with processes designed to aid families in managing the emotional, as well as the legal, consequences of their situation: see Chapter 2. In addition, lawyers acting for families should ideally appreciate the emotional state of a family suffering a breakdown. This is desirable to assist lawyers in understanding how best to manage clients. Moreover, decisions will be made (most importantly about parenting matters) that will rely, in part, on an assessment of the behaviour of family members. This behaviour should be considered in light of what is known about how normal families react to family breakdown. For this reason, we will outline briefly some of the literature on the psychological impacts of relationship breakdown on families. 1.81 When families separate, it is normal for each member to experience feelings of loss and grief, similar to those felt when a loved one dies. The resultant emotional turmoil is experienced not just by the couple themselves, but also by their children and members of their extended families. Kubler-Ross126 identified five stages of grief that individuals experience when they lose someone or something of importance in their lives: denial, anger, bargaining, depression and acceptance. These stages are not always experienced sequentially, and sometimes an individual will move backwards and forwards between different stages before reaching acceptance of the finality of the situation and the resultant changes caused to their life. Denial may be characterised by feelings of disbelief that this loss is occurring and thoughts such as ‘this cannot really be happening to me’, and is often seen at the initial stage of separation. Anger is often displaced onto the ex-partner, who may be blamed for causing the breakdown of the relationship, even though there is clearly responsibility on both sides. Bargaining, in the form of pleading, promising and offering deals, is a strategy used to try to

win back the person, or to minimise the harm caused by the separation. When the loss cannot be denied, depression often sets in and sadness, weeping and self-destructive behaviours — such as abuse of alcohol and drugs — may occur. In extreme cases, suicidal or homicidal threats may be elicited. In most cases, a point of acceptance is finally reached where couples can move on with their lives, form new partnerships and parent their children with minimal conflict. However, while they are working their way through the emotionality of separation, parents are unlikely always to behave rationally, or in the best interests of their children. [page 47] 1.82 In cases that come before the family courts, where domestic violence and child abuse feature in 60–70 per cent of matters,127 women tend to initiate more separations than men. Unlike men, women have typically begun to separate emotionally from their partners prior to the physical separation. Separation is often preceded by women asking their husband to attend counselling, or to change aspects of their behaviour that are causing difficulties in the relationship. In these circumstances, men will often deny there is a problem, especially where violence is an issue, and therefore when separation takes place they are just beginning the process of emotional separation. How adults cope with separation is largely determined by their personality, who initiated the separation, the individual’s previous experience of loss, and the degree of emotional separation they have from the lost partner. 1.83 How children cope with grief and loss is much more complex and is not usually well understood by parents or the legal system. Their ability to cope with parental separation is dependent on their personality, their previous experience of loss, how they perceive their parents to be coping, their primary emotional

attachment, their developmental stage and the level of parental conflict they experience. As children are less able than adults to articulate their feelings about the separation and resultant parental conflict, these feelings are more likely to be expressed behaviourally and are directly related to the child’s developmental stage.128

Infants and toddlers 1.84 Children in this age group are developmentally at the stage where they are learning to become a separate individual. They may demonstrate difficulty with parental conflict with the following behaviours: irritability; clinging and refusal to leave primary attachment figure; defiance and lack of cooperation; physical resistance; and behavioural regression; for example, bedwetting or regressed speech. [page 48]

Preschoolers 1.85 Children in this age group are at the stage of becoming a gendered individual so, in addition to the behaviours mentioned above, may begin to identify with or show a preference for the same-sex parent. This may cause the other parent, if emotionally vulnerable, to feel betrayed, rejected or attacked. Boys at this stage may imitate their father and be rejecting of their mother, but may also be anxious about separation from their mother. They may engage in sexualised play that can lead to

allegations of abuse. Girls at this stage may imitate their mother and be rejecting of their father. Alternatively, they may become oppositional to their mother or reject femininity in themselves and their mother.

School age 1.86 Children at this stage are struggling to feel loved, good and competent, and may be preoccupied with eliciting a positive parental response. They may: tell each of their parents what they think that parent wants to hear; lack trust; feel fragmented; see things in concrete, black-and-white terms (all good or all bad); have poor self-esteem; not cope with criticism; and align with one parent. Problems emerge when parents blame each other for these responses, not realising that they are developmentally appropriate for children in conflict situations.

Helping younger children transition 1.87 When parents separate and one parent leaves the home, the child may have fears that the other (residential) parent will leave. They may feel anxious at contact pick-up and drop-off times. They will want to know who will be there and where transition will occur. At these times, children always need to be in the hands of an adult who is trusted by them. Where there is

conflict between parents, transition may be assisted in the following ways: use of a transitional person; for example, a grandparent or an aunt to take the child between parents; use of transitional objects; for example, a teddy bear, favourite rug or toy to accompany the child; common identical calendars showing contact dates in each home; picture of Dad at Mum’s house; [page 49] picture of Mum at Dad’s house; and common photographs of family, pets, outings etc. at each house.

Early adolescence 1.88 This is the stage where the young person is normally beginning to separate from their parents, developing a positive sense of self, affirming gender and sexuality, feeling capable, being trusting and autonomous with peers, and internalising a sense of morality. Adolescents may: be self-righteous; be intolerant of one parent; manipulate parents; be critical or judgmental; spy on a parent; sabotage relationships or contact; and be rejecting. All these behaviours may be developmentally appropriate where

parents are in high conflict. Conflicted parents are not united and often cannot deal with typically rebellious adolescent behaviour. This can lead to rejection of the child, which may exacerbate parental conflict and may force the child towards the other parent, when they really need to be separating from both. Parents need to remain in the parental role and not become dependent on the child. They need to support the child’s independence and remain sensitive to the needs of the adolescent. Adolescents may prefer contact without siblings and may prefer to meet the contact parent for a movie, meal, coffee or other activity, rather than a sleepover. 1.89 In children of all ages, symptomatic behaviour will be worse the more the children feel caught up in their parents’ conflict.

Reading the signs 1.90 Once the emotional context is understood, it is easy to see how disputes may be exacerbated either because parents are in a compromised emotional state and so struggling to put their child’s interests ahead of their own, or because parents (quite naturally) misinterpret the reason for the behaviour of their children. Ideally, parents need to work together to help children cope with the stress of a parental separation. Of course, this will not always be possible. 1.91 One claim that has commonly arisen in cases is that one parent is attempting to ‘alienate’ the child from the other parent. Unfortunately, reliance on ‘parental alienation syndrome’ gained some currency for a period, before the work of [page 50]

Richard Gardner129 was discredited.130 Children may exhibit alienated behaviours without being rehearsed or trained (though of course some parents will, whether consciously or not, behave in a way that does not support the relationship with the other parent). So, influencing a child may be unconscious in the other parent, and/or alienated behaviour on the part of the child may be a developmentally appropriate response to perceived parental conflict. In other words, the meaning of a child’s behaviour, and a parent’s response to it, is complex; however, parents may naturally seek to blame the other. Psycho-educational programs for separating parents, which focus on the needs of children, may be helpful in changing parents’ perceptions of their children’s behaviour and emotional needs. 1.92 It is not possible to rehearse in detail all of the psychological literature relevant to family law disputes in a book such as this. However, it is incumbent on those working in the field to be aware of the need to take account of the particular emotional context in which disputing parties find themselves, and to approach parenting disputes with an understanding of how adults and children respond to family breakdown and conflict. 1.

Vintage Publishing, London, 2010.

2. 3.

George Routledge, London, 1930. F Pollock and F Maitland, A History of English Law Before the Time of Edward I, vol 2, 2nd ed, Cambridge University Press, Cambridge, 1912, p 389.

4.

J Jackson, The Formation and Annulment of Marriage, 2nd ed, Butterworths, London, 1969, p 21. For good measure, he managed to find some other grounds as well, such as Anne’s alleged adultery with four courtiers, to enable him to use that ultimate method of annulment, execution!

5.

6. 7. 8.

Cited in H Finlay, To Have But Not To Hold: A History of Attitudes to Marriage and Divorce in Australia 1858–1975, The Federation Press, Sydney, 2005, p 10. For simplicity, the abbreviation ‘FLA’ will be used in this book.

9.

Depending on how you calculate it, an annual wage of £1000 in 1845 would equate to a wage of something like £88,360 in 2014. O McGregor, Divorce in England, Heinemann, London, 1957, p 16.

10.

C Dickens, Barnaby Rudge, Penguin, Harmondsworth, 1973, Ch 67. See also A Tale

11. 12.

of Two Cities, Arcturus Classics, London, 2009, by the same author. (1799) 1 Hag Ecc 789. Ibid at 790.

13. 14.

(1790) 1 Hag Con 35. Cited in House of Commons Papers, Scholar Select, Great Britain, Parliament, House of Commons, vol 40, p 15, [XXXIX].

15. 16.

Hansard, House of Lords, 25 May 1857, vol 145, col 813. (1799) 1 Hag Ecc 789.

17. 18.

(1919) 36 TLR 106. Methuen & Co, Dunfermline, 1937.

19. 20.

[1943] AC 517. It was not such an innovation, having been previously introduced in New Zealand and some Australian states.

21. 22.

It was also introduced into the Matrimonial Causes Act 1959 (Cth). [1943] AC 517.

23. 24.

Ibid at 525. (1948) 76 CLR 529.

25. 26.

Cmnd 9678, 1956. [1964] AC 644.

27. 28.

[1964] AC 698. [1895] P 315 at 322 (affirmed by the House of Lords [1897] AC 395).

29.

Archbishop of Canterbury’s Group on the Divorce Law, Putting Asunder: A Divorce Law for Contemporary Society, SPCK, London, 1966. Cmnd 3123, 1966.

30. 31. 32.

Cf Pheasant v Pheasant [1972] Fam 202. For further discussion, see HA Finlay, ‘The Grounds for Divorce: The Australian Experience’ (1986) 6(3) Oxford Journal of Legal Studies 368.

33. 34.

Marriage Act 1961 (Cth) s 89. P Toose, R Watson and D Benjafield, Australian Divorce Law & Practice, Law Book Co, Sydney, 1968, p vii.

35. 36.

(1976) 134 CLR 495. L Murphy, Second Reading Speech, Family Law Bill 1974.

37. 38.

FLA s 48. FLA s 48(2).

39. 40.

Matrimonial Causes Act 1973 (UK) s 1. See L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [2.09] for further detail on this action.

41.

For a discussion, see H Finlay, ‘Farewell to Affinity and the Calculus of Kinship’ (1976) 5 University of Tasmania Law Review 16. Cf Matrimonial Causes Act 1959 (Cth) Second Schedule; FLA s 51(3); Marriage Act

42.

1961 (Cth) ss 23, 23B. 43. 44.

FLA s 21. FLA ss 20, 21.

45. 46.

FLA s 7. FLA s 31.

47. 48.

FLA s 97(3). Note the new ‘less adversarial trial’ processes for parenting disputes, introduced in 2006 and discussed at 8.69ff.

49.

50.

J Dewar, B Smith and C Banks, Litigants in Person in the Family Court of Australia, Research Report No 20, Family Court of Australia, 2000. See also R Hunter et al, The Changing Face of Litigation: Unrepresented Litigants in the Family Court of Australia, Research Report, Law and Justice Foundation, August 2002. This of course has created its own challenges for the Family Court, as evidenced by the project initiated by the court in 2000: ‘Self-represented Litigants: A Challenge’ — see www.familycourt.gov.au (accessed 8 August 2012). The Family Court of Australia’s Annual Report for 2006–07 showed that the proportion of cases where both parties were legally represented was increasing; however, the 2011–12 Annual Report indicated that the number of self-represented litigants had remained relatively stable over the previous five years. FLA s 22(2)(a).

51. 52.

FLA s 22(2)(b). See also Family Court Act 1997 (WA).

53. 54.

Royal Commission on Human Relationships, Final Report, vol 4, 1978, p 1. Ibid, p 31, [14].

55.

ABS, 4442.0, Family Characteristics and Transitions, Australia, 2012–13, www.abs.gov.au/ausstats/[email protected]/mf/4442.0 (accessed 5 August 2015). The ABS defines a blended family as one with both step-children and biological children of the couple.

56. 57. 58.

Hyde v Hyde (1866) LR 1 P & D 130 at 133. Marriage Act 1961 (Cth) s 5 (as amended by the Marriage Amendment Act 2004 (Cth)). For a discussion, see D Cooper, ‘For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-sex Marriage?’ (2005) 19 Australian Journal of Family Law 153.

59. 60.

Marriage Act 1961 (Cth) s 46(1). H Finlay, ‘Defining the Informal Marriage’ (1980) University of New South Wales Law Journal 279 at 283–4.

61. 62.

(1982) 2 NSWLR 80; 8 Fam LR 598. Ibid at 90; 614.

63.

Though actual numbers of divorces are declining: see ABS, 3310.0, Marriages and Divorces, Australia, 2013, www.abs.gov.au (accessed 5 August 2015). ABS, 4102.0, ‘Lifetime Marriage and Divorce Trends’, Australian Social Trends, 2007, www.abs.gov.au (accessed 15 May 2012).

64.

65.

Ibid, citing R Parker, ‘Perspectives on the Future of Marriage’, (2005) 72 Family Matters 78.

66.

ABS, 4102.0, ‘Lifetime Marriage and Divorce Trends’, Australian Social Trends, 2007, www.abs.gov.au (accessed 15 May 2012). ABS, 1301.0, ‘Marriages, Divorces and De Facto Relationships’, Yearbook Australia, 2009–10, www.abs.gov.au (accessed 5 August 2015).

67. 68. 69. 70. 71.

72. 73. 74. 75. 76.

77. 78.

79.

ABS, 4102.0, Australian Social Trends, March Quarter 2012, www.abs.gov.au (accessed 5 August 2015). ABS, 4102.0, Australian Social Trends, March Quarter 2012, www.abs.gov.au (accessed 5 August 2015). ABS, 1301.0, ‘Marriages, Divorces and De Facto Relationships’, Yearbook Australia, 2009–10, www.abs.gov.au (accessed 5 August 2015). Though widely used, including in the relevant modern legislation, the term ‘de facto relationship’ is something of a misnomer as the ‘relationship’ is real. As the term ‘de facto’ relates to the relationship being in substance like a marriage, though not legally one, it is more accurate to use the term ‘de facto marriage’; however, this may be confusing to those not acquainted with Latin, hence the adoption of the current term. M Sturma, ‘The Eye of the Beholder: The Stereotype of Women Convicts 1788– 1852’ (1978) 34 Labour History 3. Ibid. See s 16(1) of the repealed Act; see now Relationships Act 2003 (Tas) ss 36–38, 46– 53. Those provisions have now been replaced: see the discussion of South Australian de facto relationship law in Chapter 5. See Family Court Act 1997 (WA) (as amended by the Family Court Amendment Act 2002 (WA)). See also Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW). Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). For a detailed discussion of the various schemes, see O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25(2) Australian Journal of Family Law 25. Queensland has also recently passed the Civil Partnerships Act 2011, which encompasses same-sex unions. See O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25(2) Australian Journal of Family Law 121 at 151.

80. 81.

See, for example, Domestic Relationships Act 1994 (ACT). A Nicholson, ‘The Changing Concept of the Family: The Significance of Recognition and Protection’ (1997) 11 Australian Journal of Family Law 13 at 16.

82. 83.

Ibid. Obergefell v Hodges, Director, Ohio Department of Health 772 F 3d 388 (2015).

84.

For a discussion of the arguments, see A Sifris and P Gerber, ‘Same-sex Marriage in Australia: A Battleground for Equality’ (2011) 25(2) Australian Journal of Family Law

85. 86. 87.

88.

96 at 108–15. (1999) 198 CLR 511. Ibid at 553–4. Marriage Act 1961 (Cth) ss 5, 88EA (as amended by the Marriage Amendment Act 2004 (Cth)). For a discussion, see D Cooper, ‘For Richer for Poorer, in Sickness and in Health: Should Australia Embrace Same-sex Marriage?’ (2005) 19 Australian Journal of Family Law 153. Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 88 ALJR 118; 304 ALR 204.

89. 90.

P Maley and S Ryan, ‘ACT Made to Axe Gay Unions’, The Australian, 5 May 2008. For a detailed consideration of the schemes, and their history, see O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25(2) Australian Journal of Family Law 121.

91.

A Sifris and P Gerber, ‘Same-sex Marriage in Australia: A Battleground for Equality’, (2011) 25(2) Australian Journal of Family Law 96 at 99. ALRC, Report No 67, Interim: Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, [1.2]–[1.3].

92. 93. 94. 95. 96. 97. 98.

ALRC, Report No 69, Part I: Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, [2.30]. Ibid, [9.4]. See R Graycar and J Morgan, The Hidden Gender of Law, 2nd ed, Federation Press, Leichhardt, 2002, Ch 10 and the literature cited in that chapter. ALRC, Report No 69, Part I: Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, [1.4], [2.8], [2.9], [2.22]. Ibid, Ch 8; R Graycar, ‘The Relevance of Violence in Family Law Decision Making’ (1995) 9 Australian Journal of Family Law 58 at 63–6. ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, [9.6]–[9.7].

99.

ALRC, Report No 67, Interim: Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, [3.2]. 100. On men as victims of family violence more generally, see Dept of Attorney-General, Equality Before the Law Benchbook, 2009, produced for the Supreme Court of Western Australia, [13.2.5], available at www.supremecourt.wa.gov.au (accessed 21 June 2012). 101. For a discussion of this literature and reference to Australian family law cases that cite this research, see J Wangmann, Different Types of Intimate Partner Violence — An Exploration of the Literature, Issues Paper No 22, Australian Domestic Violence Clearinghouse, University of New South Wales, October 2011. 102. Available at www.familycourt.gov.au and www.federalcircuitcourt.gov.au respectively (accessed 17 August 2015). 103. For discussion of this, see B Pease, Engaging Men in Men’s Violence Prevention: Exploring the Tensions, Dilemmas and Possibilities, Issues Paper No 17, Australian Domestic Violence Clearinghouse, University of New South Wales, 2008.

104. ABS, 4510.0, Recorded Crime — Victims, Australia, 2010, available at www.abs.gov.au (accessed 16 August 2015). 105. Australian Institute of Criminology, Assault, available at www.aic.gov.au (accessed 18 March 2012). 106. ABS, 1301.0, Crime in Twentieth Century Australia, 2001 Yearbook Australia, available at www.abs.gov.au (accessed 16 August 2015). 107. Available at www.dss.gov.au (accessed 16 August 2015). 108. See, for example, ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, Ch 9; J Behrens, ‘Domestic Violence and Property Adjustment: A Critique of “No Fault” Discourse’ (1993) 7 Australian Journal of Family Law 9; R Graycar, ‘Gendered Assumptions in Family Law Decision-making’ (1994) 22 Family Law Review 278; R Graycar, ‘The Relevance of Violence in Family Law Decision-making’ (1995) 9 Australian Journal of Family Law 58; K Murray, ‘Domestic Violence and the Judicial Process: A Review of the Past 18 Years — Should it Change Direction?’ (1995) 9 Australian Journal of Family Law 26. 109. ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, [9.2]. 110. D Fryer, ‘False Allegations in Family Law Proceedings: Using the Family Court as a Sword, not a Shield’ (2013) Family Law Review 137. 111. Jaeger & Jaeger (1994) 18 Fam LR 126; FLC ¶92-492; JE & BG (1994) 18 Fam LR 225; FLC ¶92-516. See also P Parkinson, ‘Custody, Access and Domestic Violence’ (1995) 9 Australian Journal of Family Law 41; J Johnston, ‘Domestic Violence and Parent– Child Relationships in Families Disputing Custody’ (1995) 9 Australian Journal of Family Law 12. 112. Chief Justice A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 2–3. 113. This commenced operation on 11 June 1996. 114. ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994. 115. Chief Justice A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 3. 116. See, for example, J Behrens, ‘Shared Parenting: Possibilities … and Realities’ (1996) 21 Alternative Law Journal 213; R Alexander, ‘New Mantras in Family Law’ (1996) 21 Alternative Law Journal 276. 117. J Dewar and S Parker, ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 Australian Journal of Family Law 96. See also C Banks et al, ‘Review of Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005’ (2005) 19 Australian Journal of Family Law 79 at 89–90. 118. C Dalton, ‘When Paradigms Collide: Protecting Battered Parents and Their Children in the Family Court System’ (1999) 37 Family and Conciliation Courts Review 273. 119. See, for example, the comments in House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003, [2.2]–[2.9]. 120. See, for example, the empirical study of Dr R Kaspiew that highlighted the

significant difficulty mothers have in restraining contact with violent fathers: R Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112. 121. Ibid. 122. FLA s 60CC(2A). 123. This is known as a ‘Kennon’ contribution or adjustment, based on the case of Kennon v Kennon [1997] FLC ¶92-757. For a discussion of how this case has been applied, see P Esteal, C Warden and L Young, ‘The Kennon Factor: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1. 124. S Middleton, ‘Domestic Violence, Contributions and s 75(2) Considerations: An Analysis of Unreported Judgments’ (2001) 15 Australian Journal of Family Law 230; S Middleton, ‘Domestic Violence and Contributions to the Welfare of the Family: Why Not Negative?’ (2002) 16 Australian Journal of Family Law 26; S Middleton, ‘Matrimonial Property Reform: Legislating for the “Financial Consequences” of Domestic Violence’ (2005) 19 Australian Journal of Family Law 9. See also P Nygh, ‘Family Violence and Matrimonial Property Settlement’ (1999) 13 Australian Journal of Family Law 10. 125. S Middleton, ‘Matrimonial Property Reform: Legislating for the “Financial Consequences” of Domestic Violence’ (2005) 19 Australian Journal of Family Law 9 at 28. In this article, Middleton traces the support for an amendment to s 75(2) and why a proposed amendment to this effect was unsuccessful. 126. E Kubler-Ross, On Death and Dying, Tavistock Publications, London, 1969. 127. D Bagshaw et al, Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who Separated Post 1995 and Post 2006, Attorney-General’s Department, Canberra, 2010; T Brown et al, Violence in Families, Report No 1: The Management of Child Abuse Allegations in Custody and Access Disputes Before the Family Court of Australia, Family Violence and Family Court Research Program, Monash University, Melbourne, 1998; R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, Melbourne, 2009. 128. JR Johnston and V Roseby, In the Name of the Child, The Free Press, New York, 1997. 129. R A Gardner, Parental Alienation Syndrome, Creative Therapeutics, Cresskill, NJ, 1998. 130. See the discussion in Irish v Michelle [2009] FamCA 66 at [78]–[79]. Note also the reference to an expert witness having successful disciplinary proceedings brought against them for referring to ‘parental alienation syndrome’ in SS v AH [2010] FamCAFC 13 at [71]. It nonetheless seems that, at times, the status of this so-called syndrome is in doubt in court: see Maurer v Van Laren [2012] FamCA 8 at [108]– [113]. For a decision that canvasses the controversy surrounding Gardner’s work, and the broader research about parental behaviour that has the effect (whether intended or not) of alienating a child from a parent, see Udall & Oaks [2010] FMCAfam 1482 at [45]ff.

[page 51]

2 DISPUTE RESOLUTION IN FAMILY LAW ___________________________

Introduction 2.1 From the beginning of the Commonwealth’s substantial involvement with family law in 1959, there have been innovative legislative provisions designed to encourage the parties to a matrimonial dispute to reconcile their differences, where possible. Initially, these were designed to promote marital reconciliation and, to this end, courts were enjoined to facilitate adjournments and discussions if there seemed any chance of a successful reconciliation. It has long been recognised that the problem with going to court, particularly in family matters, is that in a common lawbased jurisdiction, the courts proceed by the adversarial system. The negative effects on children exposed to or used as pawns in their parents’ disputes are well known and documented. Research has clearly indicated that the adversarial system escalates conflicts and impacts adversely on children.1 Common sense dictates that the best outcomes for children are promoted through flexibility and responsiveness to children’s needs at different stages in their lives, and this remains the inherent difficulty with any court-

imposed solution.2 Recognition of the limitations of the adversarial process in resolving family disputes and the need to cut costs and address frustrations expressed about the family law system has led to various attempts to direct family disputes away from litigation.3 2.2 From its inception, the Family Law Act 1975 (Cth) (FLA) — and through it the Family Court — has encouraged what was then referred to as ‘alternative dispute resolution’ (ADR). This approach survives in the present s 13B of the FLA: if the court considers there is a reasonable possibility of reconciliation between the parties, it may adjourn proceedings and advise the parties to attend family [page 52] counselling. Furthermore, s 13C enables the court to refer the parties to family counselling, family dispute resolution and other family services at any stage during the proceedings. Over time, this approach has been joined by more elaborate provisions. Family mediation was first introduced into the FLA in 1991 with the passing of the Courts (Mediation and Arbitration) Act 1991 (Cth). This was followed in 1995 by the Family Law Reform Act 1995 (Cth), which inserted new Pts II and III into the FLA, and replaced the term ‘alternative dispute resolution’ with ‘primary dispute resolution’. This change in terminology was intended to convey that dispute resolution processes, rather than litigation, should be considered the first option in family law proceedings rather than an alternative to court proceedings. 2.3 The most significant reforms incorporating family dispute resolution services within the family law system were implemented through the passing of the Family Law Amendment (Shared Parental Responsibility) 2006 Act (Cth). Prior to the coming into operation of these reforms, figures released by the

Family Court of Australia indicated that approximately 5 per cent of cases in which applications were made for final orders ended with a judgment, with the majority settling before then.4 Nevertheless, these reforms were promoted as being aimed at bringing about a ‘cultural shift’ and ‘generational change’ in family law.5 In accordance with a general trend towards nonadversarial dispute resolution,6 the legislation encourages a cooperative approach to post-separation parenting arrangements. The centrepiece of these reforms was the establishment of 65 Family Relationship Centres throughout Australia. A budget of $400 million was allocated to their establishment. The FRCs, while linked to the family courts through the FLA, are situated outside the court system and thus may be regarded as a satellite system for resolving family law disputes. 2.4 The 2006 reforms introduced a number of new Parts into the FLA which are related to what are now called ‘family dispute resolution’ (FDR) procedures. They comprise Pt II (non-court based family services), Pt III (family consultants), Pt IIIA (obligations to inform people about non-court based family services and about court processes and services) and Pt IIIB (court’s powers in relation to court and non-court based family services). Arbitration is dealt with in Div 4 of Pt II, Div 2 of Pt II deals with family counselling, and Div 3 of Pt II deals with with FDR. [page 53]

Out-of-court FDR 2.5 Part II of the FLA makes provision for what are described as ‘non-court based family services’. Where the dispute involves parenting issues, these services are in the form of family

counselling and FDR (Divs 2 and 3), and arbitration where it involves a financial matter (Div 4). 2.6 Dispute resolution processes are not new to the Australian legal landscape and have been used in commercial and community settings for many years. Over time, a number of ‘outof-court’ FDR processes have been introduced, with successive Australian governments supporting the privatisation of dispute resolution processes and providing resources to support the development of these processes within the community.7 FDR services can be provided by a range of individuals such as lawyers, social workers and psychologists. FDR is available at various community and neighbourhood dispute resolution centres as well as private organisations and legal aid commissions, many of which are government funded.8

Family Relationship Centres 2.7 Family Relationship Centres (FRCs) were established ‘to provide information, advice, and dispute resolution services to families to help them reach agreement on parenting arrangements without the need to go to court’.9 They are funded by the Commonwealth Government but run by non-governmental organisations selected on a tender basis. They are aimed at providing support and assistance to intact and separated families.10 It appears that FRCs — though designed to cover a wide range of family issues from pre-relationship, to intact relationships and parenting, to post-separation — are predominantly dealing with parenting disputes between separated couples. These centres are designed to act as the first point of entry; a gateway of support for separated families.11 They cannot provide all necessary services — for example, anger management or stress management counselling — but are the gateway to numerous services that might be required by families who are experiencing difficulties. In

relation to separated parents, the focus is on keeping parents out of court by providing a dispute resolution [page 54] service that will encourage parents to sit down together, focus on their children and agree on parenting arrangements.12 At their inception, the FRCs provided three hours of free FDR services to each client. The fee structure has since changed. FRCs now provide up to one hour of a joint session free of charge. For those clients earning less than $50,000 gross per annum or receiving Commonwealth health and social security benefits, the second and third hours of the session are also provided free of charge. Centres will charge clients earning $50,000 or more gross annual income $30 per hour for the second and third hours of FDR.13 When FRCs were established, it was envisaged that the majority of the prospective litigants would be channelled through the FDR process and resolve most of their issues, thus avoiding or at least limiting the need for any judicial determination. Parties can formalise these arrangements either by entering into a parenting plan (see 8.40ff) seeking court orders by consent (see 8.5) or, in the case of financial matters, entering into a binding financial agreement (see Chapter 15). The first of the 65 FRCs opened in 2006; the Centres are scattered throughout the country, with each Centre servicing about 300,000 people. The family law system quickly felt the impact of the establishment of the FRCs, with the number of applications for final orders for child-related matters (including those where property issues were being litigated) declining significantly between 2005–06 and 2008–09.14 In addition, studies indicate that in the three years following the establishment of the FRCs, the use of dispute resolution services increased from 67 per

cent to 73 per cent, and correspondingly access to the courts diminished from 40 per cent to 29 per cent.15 The Australian Institute of Family Studies (AIFS) study into the 2006 reforms found that 70 per cent of clients gave the FRCs a favourable [page 55] rating and concluded that the ‘client satisfaction ratings [were] quite positive’.16 Although the objectives and the intentions of FRCs include strengthening family relationships and assisting families to stay together, the Centres have only a modest level of direct involvement with intact families, with the majority of their work aimed at separating families and associated services.17 The Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs provides an Operational Framework for Family Relationship Centres.18

What is FDR and who are FDR practitioners? 2.8 What, then, is FDR in the context of family law proceedings? FDR is (somewhat loosely) defined in s 10F of the FLA to be a nonjudicial process: (a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of the their disputes with each other; and (b) in which the practitioner is independent of all of the parties involved in the process.

It has been suggested that this is both a narrow and wide definition. It is wide because the kind of ‘help’ that the FDR practitioner is able to provide is unspecified,19 but it is narrow

because potentially it could exclude processes not aimed directly at dispute resolution. No particular form of FDR is mandated. 2.9 Other than s 10G, which sets out who can act as an FDR practitioner, and s 10F, which emphasises the independence of the FDR practitioner, there is little else in the Act to regulate the process of FDR. More detailed regulation of the practice of FDR is provided in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) (FLFD Regulations): see 2.11. The National Alternative Dispute Resolution Advisory Council (NADRAC) was an independent non-statutory body established in October 1995 and dis-established in 2013. During the time it was in existence, NADRAC provided expert policy advice to the Attorney-General on the development of ADR and promoted the use of ADR. [page 56] NADRAC produced a number of significant publications on ADR,20 including one on how issues of conduct obligations, confidentiality, inadmissibility and practitioner immunity affect the integrity of ADR processes.21 In 2012, NADRAC produced Your Guide to Dispute Resolution, a resource to help ordinary Australians understand more about ADR.22 NADRAC was also involved in the development of mediation standards, and the formation of the Mediation Standards Board. This Board oversees the National Mediation Accreditation System, which is a voluntary industry system under which organisations may be qualified as Recognised Mediator Accreditation Bodies that may accredit mediators.23 2.10 At the centre of the dispute resolution process is the FDR practitioner. Section 10G(1) defines FDR practitioner for the purposes of the legislation, and this includes ‘a person who is accredited as a family dispute resolution practitioner under the

Accreditation Rules’: s 10G(1)(a). There are no compulsory registration or accreditation requirements in Australia for mediators and other dispute resolution practitioners to practise in the family law system or in general. However, as only accredited FDR practitioners are able to issue s 60I certificates (see 2.27), and in order for the Act and FLFD Regulations to apply to their practice, accreditation is essential for practitioners working with parties to parenting disputes. An FDR practitioner is required to have met the accreditation standards and to remain accredited on the FDR Register.24 Accreditation is available under the FLFD Regulations.

Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) 2.11 The FLFD Regulations set out the criteria for FDR practitioners to be accredited, and create obligations, including those relating to s 60I certificates (see 2.27), in relation to their conduct while working as an FDR practitioner. Part 2 of the FLFD Regulations sets out the criteria for accreditation for FDR practitioners. [page 57] So far as the FDR process and procedures are concerned, there are four relevant regulations: regs 25 and 28–30. When a person is referred to FDR, an intake session is conducted in accordance with reg 25, which sets out those matters that the FDR practitioner must consider when deciding if the matter is one appropriately dealt with by FDR (see 2.35–2.41), and these are: any history of family violence; the parties’ safety; equality of bargaining power; risk of child abuse; the emotional, psychological and physical health of the parties; and any other matter the FDR practitioner

considers relevant.25 The Family Relationship Centre’s Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationships Advice Line26 provides guidelines for carrying out this assessment. Regulation 28 prescribes information that must be provided to the parties before FDR. This regulation refers only to particular aspects of the process of FDR, such as confidentiality and disclosure requirements, admissibility of statements made in FDR, fees, the effect of the issuance of certificates and the like. Regulation 29 places some general, and basic, obligations on FDR practitioners: to comply with the other regulations; to store records of the FDR safely; to ensure the process is suited to the parties’ needs (eg in relation to venue, timing, etc.); and not to use information gathered from the FDR for personal gain. The regulation goes on to say that the FDR process must be terminated if either party requests it or if the practitioner decides FDR is no longer appropriate: subreg (c). Finally, the FDR practitioner is not permitted to give legal advice unless they are a legal practitioner or the advice is about procedural matters: subreg (d). Regulation 30 covers how potential conflicts of interest are to be dealt with.

Dispute resolution processes 2.12 Dispute resolution processes offer parties to a dispute a range of options that give the parties different levels of control over the way the dispute is resolved. The various processes can be placed on a continuum: where they sit on that continuum depends on the amount of party control over the process and the outcome.27 At one end of the continuum, arbitration — like litigation — gives a high level [page 58]

of control over the process to the arbitrator; the parties submit themselves to the decision of a third party, the arbitrator. At the other end of the continuum, direct negotiation involves two or more parties, with control over the process themselves, communicating and attempting to reach an agreement with each other. In mediation, which sits somewhere along the continuum between the two ends, the parties decide the outcome for themselves. The amount of control exercised by the mediator and the extent to which the mediator guides the parties to a settlement varies, depending on the process role undertaken by the mediator. In facilitative mediation (see 2.14), the mediator takes responsibility for managing the process but plays no role in respect of content by, for example, suggesting possible outcomes to the parties. Whether the parties reach an agreement is for them to decide.28 While the FLA does not specifically mention any particular dispute resolution process other than arbitration, the Family Law Rules 2004 (Cth) identify four processes: negotiation, conciliation conferences, arbitration and counselling.29 Conciliation conferences are discussed at 2.47. In conciliation, the conciliator takes a more directive role with respect to likely and permissible outcomes than a mediator does in mediation, and therefore the process is closer to the arbitration end of the continuum than mediation. Counselling aims to assist people to deal with personal or interpersonal issues and is not a dispute resolution process. For this reason, it does not sit along the dispute resolution continuum. Family counselling is discussed at 2.53.

Negotiation 2.13

Negotiation can be defined as:

… a process where two parties with differences that they need to resolve are trying to reach agreement through exploring for options and exchanging offers — and an agreement.30

To a large extent, negotiation permeates the various processes common to all forms of dispute resolution, both legal and nonlegal. This is no less the case in FDR processes employed both in and out of court. Essentially, negotiation is about bargaining to reach agreement. Negotiation does not necessarily need to take place face-to-face, but may be conducted through letters or electronically, and it may also take a number of forms. Simple bilateral negotiation, for example, [page 59] involves the parties approaching each other directly, without the assistance of a third party, such as lawyers or other intermediaries. The parties have a high level of control over the process as they can decide what the rules of the process are, including when to speak, how to speak, where to talk and how long it might take. Therefore negotiation processes vary greatly according to the rules to which parties agree.31 There is evidence that in family law, many people deal with their disputes through bilateral negotiation without ever coming into contact with the courts or lawyers.32 This is consistent with the reality that in Australia most family law disputes are dealt with informally and only a small proportion reach the courts.33 Parties can also use assisted negotiation, which involves the parties approaching each other with the help of, or through, partisan assistants. These assistants can be friends of the disputants, who offer minimal assistance such as a supportive physical presence, or they may be lawyers or other professionals, who offer advice or even speak for the disputants. The different roles of the partisan assistant will affect the level of control that the disputant has over the negotiation process. In the family law context, different forms of the negotiation process are frequently used to resolve disputes between parties. Parties may enter into direct discussions or they may seek

assistance from a third party such as a lawyer, FDR practitioner or friend. Round-table conferences present a useful forum for parties to negotiate and settle their dispute. These conferences occur when all parties to the dispute meet at one of the lawyers’ offices in an attempt to settle the dispute. They can be used to resolve any kind of legal issue.

Mediation 2.14 With the introduction of primary dispute resolution into the FLA in 1996, mediation became the dispute resolution process that was most often used. The 2006 reform legislation removed all references to mediation from the FLA, and the term ‘mediation’, as well as references to other well-known dispute resolution processes, was replaced with the generic term ‘family dispute resolution’, which [page 60] is dealt with in Pt II Div 3 of the FLA. While the terminology ‘mediation’ has disappeared from the Act, FDR is usually associated with this process. It has been suggested that the dispute resolution process most commonly followed by FDR practitioners is ‘facilitative mediation’ — which is problem-solving and thus resolution-focused.34 NADRAC defines facilitative mediation as a process in which the participants to a dispute, with the assistance of a dispute resolution practitioner (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The mediator has no advisory or determinative role in regard to either the content or the outcome of the dispute, but may advise on or determine the process of mediation whereby resolution is attempted. Mediation may be undertaken voluntarily, under a court order, or pursuant to an existing contractual agreement.35

2.15 Facilitative mediation ‘involves a structured communication process and can be described in terms of a series of key stages that the parties are guided through’.36 The initial ‘explanation’ stage is where parties provide the background to the mediation by making opening statements, outlining their concerns and providing details of their expectations for the mediation. This is followed by the ‘clarification’ stage, where the FDR practitioner identifies the common issues and sets them out in the form of an ‘agenda’ so that the mediation process may progress. Once an agenda is agreed on, the role of the FDR practitioner is to guide the parties through the discussion of each item on the agenda in a structured manner, as well as to assist the parties to develop a range of options on which they might agree. The agenda items may be discussed in order of priority. The FDR practitioner will encourage the parties to talk directly to one another and to negotiate a resolution of each particular issue. In order to support the mediation process, and to facilitate confidential discussions, during the ‘exploration’ and ‘negotiation’ stages the FDR practitioner may arrange separate sessions with each party. There is, however, a range of approaches to family mediation that practitioners may adopt. While the facilitative problemsolving/solution-focused approach has become the dominant paradigm over the past three decades37, other approaches include the transformative approach and the narrative approach 38 [page 61] 2.16 The neutrality of the FDR practitioner is regarded as central to the family mediation process: s 10F. FDR practitioners must remain independent, and their role is limited to seeking options from the parties and does not extend to suggesting solutions. Parties are encouraged to ‘own’ their agreement rather than have an agreement imposed on them, as it is thought that parties are

more likely to rate highly, and to adhere to, an agreement that they have arrived at themselves. In this way, facilitative mediation may be distinguished from advisory or evaluative mediation, where the mediator imposes their views and what they consider to be a suitable settlement on the parties. However, even when facilitative mediation is used, the neutrality of the FDR practitioner has been questioned. For example, in cases of extreme power imbalance between the parties, it has been suggested that mediators attempt to redress this imbalance and are thus not entirely independent.39 Furthermore, studies indicate that based on the interests of children, FDR practitioners tend to advocate for children within the dispute resolution process and are thus not entirely neutral in their attempts to resolve differences between adult parties.40 It has also been noted that the legislative requirements of FDR practitioners to assess whether parties have made a ‘genuine effort’ to settle (s 60I(1) and (8): see 2.27) and to inform parties about the need to consider ‘equal’ or ‘substantial or significant’ time (s 63DA(2)) may impinge on the practitioner’s independence and the parties’ ability to control the outcome of the dispute.41 (On parenting time arrangements, see Chapters 8 and 9.)

Child-inclusive mediation 2.17 Child-inclusive mediation puts into practice the notion that children’s views should be given appropriate consideration when resolving post-separation disputes between parents. Childinclusive mediation gives expression to Art 12 of [page 62] the United Nations Convention on the Rights of the Child 1989, which requires that where appropriate:

… the views of the child [be] given due weight in accordance with the age and maturity of the child … the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child.42

The emphasis on children’s rights, together with clinical research that indicates the potential detrimental effects of parental separation on children, led to greater agitation for a childinclusive model for resolving post-separation parental disputes.43 Child-inclusive mediation must be distinguished from childfocused mediation which, as the name suggests, concentrates on the interests of the child in the resolution of post-separation parenting disputes. Child-inclusive dispute resolution, which is used in a number of FRCs and other dispute resolution centres and practices, relies on the mediator to communicate directly with the child and brings the voice of the child to the FDR process. It can be used with children as young as six. Dr Jennifer McIntosh, a researcher and practitioner who has been influential in the development of the child-inclusive mediation model, describes the differences between child-focused and child-inclusive mediation as follows.44 Child-focused dispute resolution

Child-inclusive dispute resolution

The aims of child-focused dispute resolution are to: •

•

[Child-inclusive dispute resolution] is aimed at assisting parents to re-establish or consolidate a secure emotional base create an environment that supports for their children after separation. It disputing parents in actively shares the same goals as those outlined considering the unique needs of each under child-focused practices, and of their children; crucially also includes: facilitate a parenting agreement that preserves significant relationships and supports children’s psychological adjustment to the separation, including recovery from parental acrimony and protection from further conflict;

•

consulting with children in a supportive, developmentally appropriate manner about their experiences of the family separation and dispute;

[page 63]

Child-focused dispute resolution

Child-inclusive dispute resolution

•

support parents to leave the dispute resolution forum on higher rather than diminished ground with respect to their post-separation parenting; and

•

ensuring that the style of consultation avoids and removes any burden of decision-making from the children;

•

ensure that the ongoing mediation/litigation process and the agreements or decisions reached reflect the basic psychodevelopmental needs of each child, to the extent that they can be known without the involvement of the children.

•

understanding and formulating [the] children’s core experience within a developmental framework;

•

validating children’s experiences and providing basic information that may assist their present and future coping;

•

forming a strategic therapeutic loop back to the children’s parents by considering with them the essence of their children’s experience in a manner that supports them to hear and reflect upon their children’s needs; and

•

ensuring that the ongoing mediation/litigation process and the agreements or decisions reached reflect at core the psychodevelopmental needs of each child.

2.18 This model recognises that it is not always appropriate for separating parties to engage in child-inclusive mediation. In order to assess their suitability for child-inclusive mediation, the parties and their children must undergo a careful screening process. At an intake session, an assessment will need to be made as to whether the parents are receptive to their children being interviewed and whether the parents are capable of sustained focus on their children’s interests rather than their own. It is also recognised that

this model has its limitations and is only appropriate if certain basic preconditions are met. These include: at least one child must be of school age; in the absence of an interpreter, both parents must have a working knowledge of English; if mental illness is present, it must be properly managed; and the parties must be screened for family violence. Once it is determined that child-inclusive mediation is safe and appropriate for a particular family, the children are interviewed, with their siblings to begin with, and then separately, by a highly specialised child consultant. The child consultant [page 64] will provide the parents and the FDR practitioner with feedback regarding the children’s responses to the separation and their needs. A number of sessions might be necessary before the child consultant is in a position to make a comprehensive assessment. Against this backdrop, the FDR practitioner will attempt to mediate a resolution of the parenting issues.45 Positive results have emerged from research conducted following the use of this model. A study that compared outcomes over one year for two groups of separated parents who attended mediation over parenting disputes indicated that children who are involved in child-inclusive mediation may have better future relationships with their parents. Furthermore, the arrangements that are achieved are likely to suit that particular family’s situation and, as a result, are more durable.46 A four-year follow-up study consolidated these findings about the benefits of a child-inclusive mediation pathway for families embedded in complex postseparation parenting disputes.47 Further, the researchers in this study concluded, from the longitudinal outcomes from two mediation interventions, that the child-inclusive intervention ‘opened an important door for parents and particularly for fathers,

which significantly shaped their post-separation adjustment, and that of their children’.48

Further FDR processes outside the court system 2.19 In addition to the non-adversarial dispute resolution processes discussed above, there are other non-court processes operating outside the Family Court system.

Collaborative law 2.20 Over the last few decades, a new model of resolving family law disputes known as ‘collaborative law’ or ‘collaborative practice’ has evolved in the [page 65] United States and spread to Canada, the United Kingdom and Australia.49 According to the definition provided by NADRAC: … collaborative law is a form of collaborative practice where the process is led by lawyers representing each of the participants and it has been agreed that the lawyers will cease to act for their client if the matter proceeds to litigation.50

It is called ‘collaborative law’ because ‘instead of each lawyer communicating with their client separately and then advocating and bargaining with the other lawyer in the absence of the clients’, it brings the lawyers and clients together ‘in a nonadversarial setting to negotiate the issues’.51 Before the process begins, the parties, their lawyers, and perhaps other professionals such as mental health and child specialists, enter into a written agreement that during the process they will focus on negotiation

and settlement and agree not to litigate or threaten to litigate. Disqualification of the lawyers from representing the parties in any subsequent legal proceedings relating to the same subject matter is regarded as the ‘definitive principle’ of collaborative law. There is thus both a commitment to resolving the dispute without litigation as well as a significant incentive to parties to finalise the matter with the collaborative lawyers. Clients and lawyers have a duty to disclose all information and agree to negotiate in a constructive manner in order to achieve a mutually acceptable agreement for the family as a whole. In order to hold themselves out as a collaborative law practitioner, lawyers must undergo a training process.52 In January 2006, the then federal Attorney-General asked the Family Law Council to report on whether legal changes needed to be made to support this practice. The ensuing report53 provides a good overview of collaborative law and its place, and potential, in the family law system. Recommendations were made for some amendments to the FLA to support the use of this practice. These recommendations have not progressed any further. [page 66]

Legal aid conference/dispute management 2.21 Legal aid authorities throughout Australia provide a range of services to people seeking to resolve family law disputes. Processes — often referred to as legal aid conferences — have been developed and are utilised when at least one of the parties is legally aided and funding is provided to assist with FDR under the auspices of the legal aid authority.54 The names of these dispute resolution conferences and the models utilised vary from state to state and territory. In the Australian Capital Territory, for example, this style of conferencing is described as ‘shuttle conciliation’.55

In each case, an intake session is conducted to screen for safety issues and, if considered appropriate, the parties are located in separate rooms. Conferences are conducted by a conference chair, who is an accredited FDR practitioner and whose role is to facilitate discussion but not to provide legal advice or to make decisions. Parties will usually appear at the conference with their legal advisers. Under this model the chair of the conference will report to the state/territory legal aid authority regarding the outcome of the conference and will make recommendations, which may involve more legal aid funding for further conferencing or the drafting of minutes of orders by consent. Moreover, if a legally aided party is perceived as acting unreasonably during the course of the conference, legal aid funding may be withdrawn.

Arbitration 2.22 According to s 10L(1), arbitration is a process (other than a judicial process) in which the participants to a dispute present arguments and evidence to an arbitrator who makes a determination. Arbitration is not dissimilar to court proceedings, but it allows the parties to have more control over the process. One of the key differences between arbitration and court proceedings lies in the fact that the arbitrator is usually chosen by the parties themselves. In order to act as arbitrator, the arbitrator is required to meet the requirements prescribed in the Family Law Regulations 1984 (Cth). [page 67] Arbitration proceedings are governed by the FLA. Before the arbitration, parties enter into an arbitration agreement which contains the terms to which the parties have agreed. Arbitration may be conducted in a similar manner to court proceedings, with

witnesses being sworn in and cross-examined, or it may be conducted in a more relaxed manner. Parties can also agree to non-binding arbitration. Arbitration appeared in the FLA in 1991 as a result of recommendations made by the Family Law Council.56 Following these recommendations, both voluntary and compulsory arbitration were included in the original arbitration scheme, but in 2000 the scheme was modified to its present form, which provides only for voluntary arbitration. The relevant provisions are now found in Pt II Div 4 and Pt IIIB Div 4 of the FLA, and Pt 5 of the Regulations.57 Arbitration can only be used in respect of financial matters (property settlement and spousal maintenance) and not parenting issues. Part II Div 4 establishes two categories of arbitration: s 10L(2). Arbitration under s 13E is where parties have started proceedings under Pt VIII (property disputes between married couples) or Pt VIIIAB (property disputes between de facto couples (other than financial agreements)) and all parties consent to the matter, or part of it, being referred — by court order — to arbitration. Section 13E is located in Pt IIIB Div 4. As there are court proceedings on foot in this instance, there is a provision enabling the judge to determine questions of law referred by the arbitrator: s 13G. The other category, ‘relevant property or financial arbitration’, is classified as arbitration other than s 13E arbitration. It has a wider application and is available for all, or any part of, a matter under Pt VIII, Pt VIIIA (financial agreements), Pt VIIIAB, Pt VIIIB (superannuation matters) and s 106A (which refers to execution of instruments by order of court). An award made via either category of arbitration can be given the effect of a court order through registration, by either party, in court: s 13H and regs 67P–67S. The award will not be binding unless it is registered with the court. Once registered, an award can be the subject of a review by a judge, but only on a question of law: s 13J(1). The outcome of such a review can be affirmation,

[page 68] variation or reversal of the award: s 13J(2). Registered awards can also be altered by a court in the circumstances set out in s 13K(2), which is somewhat similar to s 79A, the provision setting out when orders altering interests in property can be overturned: see Chapter 13. Thus, a registered award can be varied by the court where there has been fraud, the award is void, voidable or unenforceable, the award has become impracticable to perform, or there was bias or a lack of procedural fairness in the arbitral process. 2.23 Part 5 Div 2 of the Family Law Regulations 1984 (Cth) sets out various procedural matters relating to the arbitration process and arbitrators. The resemblance to court proceedings is seen in the specialist legal training required of arbitrators (reg 67B), the option of having legal representation (reg 67M), the ability of the arbitrator to require witnesses to attend and give evidence and the right of parties to subpoena witnesses (reg 67N), the obligation of the arbitrator to decide the issues in accordance with the FLA (reg 67I(1)) and the requirement for written reasons: reg 67P. However, where all parties consent, the arbitrator is not bound by the rules of evidence (reg 67O) and, in the absence of any contrary agreement, costs of the arbitration (not including legal fees) are shared equally: reg 67H. Also, the parties can enter into an arbitration agreement, which will set out the terms of the arbitration including procedural matters relating to the arbitration, how the arbitration is to be conducted and the circumstances under which it is to be terminated: reg 67F. The details of the required content of the arbitration agreement are also contained in this regulation. If parties do not enter into an arbitration agreement, then before conducting an arbitration the

arbitrator must give written notice to each party setting out information in relation to the arbitration: reg 67G. Like other FDR processes, there are advantages of arbitration over the court process. These include savings in time and legal costs, choice of decision-maker, more flexibility in process design to suit the parties, and privacy.58 Arbitration can be used to resolve some, if not all, of the financial issues between the parties, even if they are relying on court proceedings to resolve issues relating to their children. 2.24 There has not been widespread use of arbitration in family law matters.59 Concern at the backlog of family law cases waiting for trial and the under-utilisation of arbitration resulted in the then Attorney-General asking the Family Law Council in May 2006 to reconsider the question of how voluntary arbitration might be encouraged and whether arbitration could be made compulsory in financial and [page 69] property matters. The Council issued a Discussion Paper in May 2007.60 Following consultation, in September 2008 the Council submitted a letter of advice to the then Attorney-General suggesting that in order to make arbitration proceedings more attractive, the FLA be amended to provide that where parties went to consensual arbitration, ordered under s 13E of the FLA, it should be possible for the parties to agree that instead of being limited to an appeal on a question of law, review of arbitration proceedings should be by hearing de novo.61 To date, this suggestion has not been acted on. The Family Law Council concluded that a system of discretionary court-ordered arbitration is unlikely to succeed without the support of the courts and the profession. There are signs that the courts and profession are prepared to

offer more support for arbitration of family law matters. The Australian Institute of Family Law Arbitrators and Mediators promotes the attractions of mediation and arbitration as a means of dispute resolution among both practitioners and the wider community.62 The judges of the Family Court have clearly indicated their support for effective and timely arbitration for people who wish to arbitrate rather than litigate their financial disputes, by making rules to address certain gaps previously impeding the use of arbitration.63 These rules now make provision for disclosure and subpoenas, which are additional to the provisions relating to arbitration in Pt 5 of the Family Law Regulations 1984 (Cth).64

Pre-action procedures 2.25 The Family Law Rules 2004 (Cth) require parties to potential court proceedings to take steps to explore areas of resolution and, where a dispute cannot be resolved, to narrow the issues that require a court decision, before commencing proceedings. Rule 1.04 sets out the main purpose of the Rules, which is ‘to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances’.65 Literature supports the early [page 70] intervention of dispute resolution processes, and asserts that parents who attend FDR immediately post-separation are more likely to report increased parental cooperation than those that attended FDR after their divorce; in other words, at least 12 months after separation.66 It is generally accepted that for the majority of couples, litigation should be the path of last resort. Apart from the time that it will take for an application to make its

way through the court system, it is also emotionally and financially draining for all concerned. The adversarial system is not conducive to an amicable resolution of proceedings, and cross examination serves to polarise parties even further. Before instituting proceedings, parties should make a ‘genuine effort’ (s 60I(1)) to resolve their differences by participating in FDR proceedings, or at the very least, explore options for settlement by correspondence; for example, by making an offer of settlement and complying with the duty of disclosure, which requires making full and frank disclosure of their financial circumstances.67 To this end, r 1.05 mandates that all matters, except divorce, child support, and bankruptcy proceedings, are now subject to compulsory pre-action procedures. A party’s failure to comply with a pre-action procedure may be taken into account by the court when considering whether to order costs.68 2.26 There are circumstances in which parties are not obliged to comply with pre-action procedures.69 In parenting cases, a good reason will include that the case involves allegations or the risk of child abuse and family violence, and in property cases that there are allegations of family violence, the risk of family violence, or fraud. In addition, parties are not obliged to embark on pre-action procedures where the application is urgent, the applicant would be unduly prejudiced, or where within the 12 months before the start of the case there has been a previous application in the same cause of action. Schedule 1 of the Family Law Rules 2004 (Cth) sets out in detail the requirements for compliance with the pre-action procedures, as well as the consequences for non-compliance. The Family Law Rules apply only to cases in the Family Court of Australia. For applications issued in the Federal Circuit Court, the provisions of the Federal Circuit Court Rules 2001 (Cth) apply in conjunction with the Civil Dispute Resolution Act 2011 (Cth), and require parties to take ‘genuine steps’ to resolve their matter before commencing proceedings.70

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Parenting disputes and s 60I certificates 2.27 So far as parenting disputes are concerned, since the commencement of the Family Law (Shared Parental Responsibility) Act 2006 (Cth), the pre-action procedures contained in the Family Law Rules 2004 (Cth) have largely been replaced with the provisions in Pt VII Div 1 Subdiv E of the FLA. These provisions were phased in over time, commencing in July 2006: s 60I(2)–(6). Since 1 July 2008, a court may not hear an application under Pt VII unless the application is accompanied by a ‘certificate’ from a FDR practitioner (s 60I(7)), or one of the exceptions contained in s 60I(9) applies: see 2.22. Obtaining a certificate from an FDR practitioner is thus a threshold requirement that must be satisfied before parties can commence proceedings for an order in relation to children. In children’s matters, FDR is well and truly compulsory.71 2.28 As with many rules, there are exceptions. Section 60I(9) sets out the circumstances where parties are not obliged to file a certificate, a number of which might apply in a particular case:72 The orders are sought by consent or in response to an application by the other party. The court is satisfied that there are reasonable grounds to believe that there has been abuse of the child by one of the parties to the proceedings. There is a risk of abuse of the child if there is a delay in applying for an order. There has been or there is a risk of family violence by one of the parties to the proceedings.73 The application concerns a contravention of a recently made parenting order and the court is satisfied that there are

reasonable grounds to believe the person has behaved in a way that shows a serious disregard for their obligations under the order. The application is urgent.74 One of the parties cannot participate effectively in FDR (eg due to location or disability, etc.).75 In addition, the legislation stipulates that where an application was made before 1 July 2007, there is no requirement to file a certificate: s 60I(5). A certificate [page 72] will also not be required where parties are applying for financial orders only, an order in relation to child abduction pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (see Chapter 8) or child support orders. 2.29 Typically, where there is a parenting dispute and no claims of violence or abuse, and both parties could participate in FDR, a certificate must be obtained. In this way, parties are forced to take steps to use FDR before going to court. Ideally, by participating in the process, even though it might not be the process they would choose, parties reach a negotiated resolution of the dispute with the help of the FDR practitioner. This has been the experience of many more parties since the 2006 reforms than was previously the case: see 2.7. Some matters, however, will not be resolved in this way. If the FDR practitioner considers that FDR is inappropriate, a certificate will be issued at the end of the intake session. Otherwise, if parties embark on FDR, a certificate will be issued at the conclusion of the FDR session. Section 60I(8) of the FLA and Sch 1 of the FLFD Regulations prescribe five types of certificate the FDR practitioner can issue.

One party, after being referred to FDR, did not attend because the other party would not, or did not, attend: s 60I(8)(a). One party, after being referred to FDR, did not attend because, before providing FDR, usually at the intake session, the FDR practitioner decided that FDR was inappropriate having regard to prescribed matters: s 60I(8)(aa). Regulation 25(2) of the FLFD Regulations sets out the factors that the FDR practitioner must consider when making this decision. They include a history of family violence; the safety of the parties; power imbalances among the parties; the risk of child abuse; and the emotional, psychological and physical health of the parties. The Regulations are clear (reg 25(4)): if the FDR practitioner is not satisfied that FDR is appropriate, dispute resolution must not be provided. Both parties attended FDR and made a genuine effort to resolve the issues: s 60I(8)(b). Both parties attended FDR and at least one of the parties did not make a genuine effort: s 60I(8)(c). Both parties began attending FDR, but after taking into account the factors set out in reg 25(2), the FDR practitioner decided that it was inappropriate to continue FDR. In such a case, in accordance with reg 29(c), the FDR practitioner must terminate the FDR process: s 60I(8)(d). 2.30 Section 60I thus requires that the majority of prospective litigants who intend applying for a parenting order, at the very least, make contact with an FDR practitioner, and in most instances attempt FDR before their application under Pt VII of the FLA may be heard. Furthermore, s 60J(1) provides that even where the [page 73] court has reasonable grounds to believe that there has been child abuse or family violence, the court must not hear an application

unless the applicant confirms in writing that they have been advised of the dispute resolution options that are appropriate in the particular circumstances. If the applicant has not received such advice, then the court must refer the applicant to a FDR practitioner or family counsellor: s 60J(4). Section 60J(1) is subject to the exceptions contained in s 60J(2) that where there are reasonable grounds to believe that there is a risk of child abuse if there were to be a delay in applying for the order, or where there is a risk of family violence, s 60J(1) will not apply. In the Family Court, if the parties cannot resolve the matter through FDR, then they must still comply with the other preaction procedures set out in the Family Law Rules 2004 (Cth) r 1.05 and Sch 1, which are aimed at achieving early full and frank disclosure and a narrowing of issues. An intended by-product of this is that it will further encourage an agreement before the matter reaches trial. At first glance, it would seem that FDR could be avoided simply by non-attendance or by a party failing to make a ‘genuine effort’ to settle, thus defeating the purpose of the provisions. However, providing a certificate simply gives the court jurisdiction to hear the matter. Where, for example, the certificate shows nonattendance, and it is the applicant parent who has failed to attend, s 60I(10) requires the court to consider making an order that the applicant attend FDR. So, non-attending applicant parents can be sent back to FDR immediately. This may occur even where the applicant was, as a result of s 60I(9), not obliged to obtain a certificate: see 2.28. Further, at any stage in the proceedings, the court can consider sending parties to counselling or FDR (s 13C) and the court may be influenced in this decision by the type of certificate provided: see the note to s 60I(8).76 There is also scope for a court exercising jurisdiction under the FLA to make orders directing parties to attend FDR in the event that disagreement arises regarding the terms of an order: s 64B(2). Generally, in family law proceedings each party bears their own costs. However, the court can take into

account the type of certificate when considering whether to make a costs order against a party under s 117: see the note to s 60I(8) and r 1.10(2)(d). There are potential financial consequences, therefore, for failure to attend FDR or to make a genuine effort to resolve issues.77 [page 74] 2.31 What constitutes a ‘genuine effort’ under s 60I(1) has given rise to some discussion. Tom Altobelli suggests that it requires a participation in good faith.78 Hilary Astor proposes a four-part definition consisting of: (a) attending family dispute resolution, and (b) willingness to consider options put forward by the other party or the family dispute resolution practitioner, and (c) willingness to consider putting forward options for the resolution of the dispute, and (d) willingness to focus on the needs and interests of the children, to the best of the parties’ ability.79

The nebulous concept of ‘genuine effort’ makes it very hard to give it a precise meaning. However, this accords fully with the discretionary nature of many important family law concepts. One that immediately springs to mind is the ‘best interests’ principle, which guides all decision-making regarding children: see Chapter 8. 2.32 Cases are emerging where failure to comply with the preaction procedures has been a ground of appeal against a first instance decision. In Brianna v Brianna,80 the husband, the putative father, had sworn an affidavit acknowledging that he was the father of the child, and had been registered as the parent of the child. He was therefore presumed to be the father pursuant to ss 69R and 69T of the FLA: see 7.9 and 8.67. He nevertheless denied he was the father of the child. The trial judge ordered that the husband and wife undergo parentage testing. The wife

appealed against this order. One of the grounds of the wife’s appeal was: … the trial Judge’s failure to require the parties to attend family dispute resolution and to hear the application without certification under s 60I of the Act that the parties had been to family dispute resolution.81

In this particular case, the Full Court dismissed the appeal as, at the time the wife had filed her application (March 2007), s 60I(7) was not yet in effect. In future cases, a court may conclude that s 60I(7) does not apply because one of the s 60(9) exceptions is made out; for example, urgency: s 60I(9)(d). In Brianna, the Full Court found in any event, that the trial judge canvassed the issue and it was clear that there was no prospect of resolving the issue of parentage testing through FDR. [page 75]

Property settlement and maintenance 2.33 For financial disputes in the Family Court, the pre-action procedures are set out in the Family Law Rules 2004 (Cth): r 1.05 and Pt 1 Sch 1. The Schedule does not mention FDR and instead refers to dispute resolution processes such as negotiation, conciliation, arbitration and counselling. However, in practice the primary forms of dispute resolution processes, family mediation and negotiation, are used to resolve financial matters before proceedings are issued. According to Sch 1 reg 1(5), the object of pre-action procedures is primarily to encourage resolution of the dispute before filing an application in court, by providing for full and frank disclosure and the exchange of information and documents, and by providing a process to resolve the dispute. As with parenting cases, there are situations where parties are exempted from utilising these procedures: r 1.05(2). 2.34

In addition to the exceptions in r 1.05, the Schedule

reiterates and adds to the circumstances where a court may accept that it was not possible or appropriate to comply with the preaction procedures, such as genuinely intractable disputes. Where none of the exceptions applies, the Rules mandate that the preaction procedure must be embarked upon in two stages. At Stage 1, an intending applicant must give a copy of the pre-action procedures to the other party, make enquiries about dispute resolution services and invite the other party to participate in dispute resolution: Sch 1 reg 3(1). Schedule 1 then goes on to say that prospective parties must cooperate in choosing a dispute resolution service and ‘make a genuine effort to resolve the dispute by participating in dispute resolution’: Sch 1 reg 3(2). If no agreement is reached through dispute resolution, or a party fails to participate in dispute resolution, then at Stage 2 the applicant must give the prospective respondent notice in writing of their intention to commence proceedings: Sch 1 reg 3(4). Among the material that the notice must contain is a genuine offer to resolve issues and the timeframe within which the respondent must reply: Sch 1 reg 3(5). The respondent must reply in writing stating whether the offer is accepted and, if it is not accepted, make a genuine counter-offer and specify a timeframe for the applicant to respond: Sch 1 reg 3(6). If an applicant fails to comply with the pre-action procedure, this can be considered when making further directions or in the making of a costs order: r 1.10(2)(d) and Sch 1 reg 1(3). In Cross & Beaumont,82 the husband sought a costs order against the wife on the basis that she failed to comply with r 1.05 of the Family Law Rules; in other words, she had failed to adhere to the pre-action procedures. In dismissing the husband’s application, Watt J commented: I would have great difficulty in finding that the wife’s refusal to engage in face to face dispute resolution with the husband was unreasonable having seen for

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myself the very significant differences in their levels of assertiveness and the husband’s capacity to express himself aggressively in circumstances where he considered that he was in the right.83

Thus, the Family Court is taking an expansive view of these rules. Pre-action procedures are compulsory in both financial and parenting cases. However, the fact that, subject to specific exceptions, procedures cannot be commenced in parenting cases without a s 60I certificate ensures that nominally at least there is greater compliance with pre-action procedures in parenting cases. At the launch of National Law Week in Sydney in May 2010, the then Attorney-General the Hon Robert McClelland (now a judge of the Family Court of Australia) indicated that the government intended introducing compulsory FDR for property and spousal maintenance cases.84 This proposal has not progressed since this announcement.

When is FDR unsuitable? 2.35 FDR will not be suitable for all separating couples. In Australia, from its inception, FDR has been the subject of substantial criticism as it is suggested that post-separation, women are more economically, socially and psychologically vulnerable than men and may be coerced into accepting unjust and unfair agreements.85 According to Batagol and Brown: … where there is a significant power imbalance between the parties, compulsory mediation may result in an unjust process and outcome, as parties of unequal bargaining power are forced to negotiate, giving the stronger party ample opportunity to pressure the weaker party into capitulation.86

This is especially true in instances where family violence or abuse may be present.87 Further, the compulsory pre-action procedures in relation to children’s matters (see 2.27–2.32) have been widely condemned as there is a high risk that victims of violence and abuse are unable to make free and informed decisions. Moreover, it has been suggested that the forward-looking

[page 77] focus will overshadow the past history of violence and abuse, and put the participants and their children at risk.88 2.36 Where there is a history of family violence, it is generally acknowledged that victims should not be exposed to FDR processes such as family mediation. FDR may be inappropriate in these circumstances for a number of reasons, including: the perpetrator may use FDR as an opportunity for violence and intimidation, as there is an obvious power imbalance; perpetrators of violence are generally not capable of honesty and the desire to settle; it places a heavy burden on the victim of abuse; and, importantly, because FDR is a private and confidential process, there is limited transparency and accountability.89 Of course the most significant difficulty of all is that of identifying violence in the first place. The government has recognised the inappropriateness of victims having contact with perpetrators, as well as the importance of identifying instances of family violence and abuse. In an attempt to avoid FDR processes being used in circumstances where there is a history of family violence or abuse, the Attorney-General’s Department has put in place screening and assessment procedures to assist FDR practitioners in identifying safety issues and to ensure that victims of family violence are not using FDR in inappropriate circumstances. It is also recognised that another key element of FDR practices is to assess the risk of violence and abuse, and identify cases where FDR may be appropriate despite family violence or other risks.90 In such circumstances, FDR may be conducted by telephone or by way of shuttle, where the parties are in separate rooms and the mediator goes back and forth between them. However, it is acknowledged that there are significant difficulties with implementing effective screening and assessment processes to ensure that violence between partners and towards children does not go unnoticed:91 See further, 2.39–2.41.

2.37 Over the period 2006–09, the AIFS undertook an evaluation of the 2006 reforms in order to determine whether these reforms had achieved their aims, one of which was clearly to encourage prospective litigants to resolve their disputes without resorting to litigation. The study found that about two-thirds of parents [page 78] who had separated after 2006 had used FDR services after separating and that these parents were less likely to use lawyers than those who separated prior to 2006.92 Furthermore, about two-fifths of those who had attempted FDR had reached agreements, most of which were still in place at the time of the study,93 thus suggesting some evidence of a culture shift. It also found that there was generally satisfaction with the services, with over 70 per cent of FDR clients saying they were treated fairly and over half indicating that they were provided with the help they needed.94 However, disturbingly the study also indicated that: Family Relationship Centres have also become a first point of contact for a significant number of parents whose capacity to mediate is severely compromised by fear and abuse and there is evidence that FDR is occurring in some of these cases.95

With the change in government in 2007, the Commonwealth Attorney-General expanded the broad evaluation of the impact of legislation being undertaken by the AIFS and authorised further studies. One of these studies, Brown et al, Family Law and Family Violence in Australia: The Experiences and Views of Children and Adults from Families who Separated Post 1995 and Post 2006, 2010,96 was aimed at examining the impact of family violence that had occurred before, during or after parental separation on postseparation decision-making. More specifically, it was aimed at uncovering the perspectives of parents and children on the effect that a history, or the existence, of violence within the relationship has on the decisions that people make about accessing the courts

and dispute resolution services, as well as the decisions they make while they are at court and at dispute resolution services. Respondents in this study reported in graphic detail that when there was a history and or a presence of family violence, it affected their decision-making in a myriad of ways. It impacted on the decisions they made about separating, and about accessing dispute resolution services and courts after separation; it also affected their decisions while they were at dispute resolution services and courts, as well as their post-separation parenting arrangements. The study found that, regrettably, they were pushed to FDR services by their need for protection and by the policies of the legislation, but they encountered many obstacles along their pathways, and many found little satisfaction with the policies and the services of the family law system.97 [page 79] 2.38 Another report, the joint 2010 report of the Australian Law Reform Commission and the New South Wales Law Reform Commission into family violence, recommended that: The Australian Government Attorney-General’s Department should: (a) promote and support high quality screening and risk assessment frameworks and tools for family dispute resolution practitioners; (b) include these tools and frameworks in training and accreditation of family dispute resolution practitioners; (c) include these tools and frameworks in the assessment and evaluation of family dispute resolution services and practitioners; and (d) promote and support collaborative work across sectors to improve standards in the screening and assessment of family violence in family dispute resolution.98

2.39 A number of practice-based developments have been developed with the aim of improving screening for family violence99 and improving how the family law system overall deals with family violence and child abuse concerns (see further, Chapter 3).100 The evaluation report on the 2012 FLA family

violence amendments101 shows an increased emphasis on identifying family violence and safety concerns across the family law system. The Report states, however, that reservations remain among family law system professionals about the capacity of the system to adequately deal with these concerns.102 Findings in the Report relating to the 2012 amendments more generally are discussed in Chapters 3 and 8 of this book. In addition, there are aspects of the Report that are relevant to FDR. In terms of identification of family violence and safety concerns, the authors state that while there is evidence of an increased emphasis on these concerns across the system, particularly among lawyers and courts, ‘refinements in this [page 80] practice area are required and the development of effective screening approaches has some way to go’.103 Of particular concern is the data that parenting matters are taking longer to resolve post-reform than pre-reform. It is unclear whether this is entirely attributable to the reforms or whether resourcing and other issues may be the cause.104 Importantly for the operation of s 60I, the authors of the Report conclude that screening and assessment should be an inherent part of the FDR process within the existing legislative framework.105 2.40 The issues for FDR where there is family violence are well documented, as the preceding paragraphs show. Responses to these concerns include the development of mediation models designed for cases where there is a history of family violence, in processes outside106 and within107 the court system. Notwithstanding these developments, concerns remain that participants in FDR are exposed to risk of harm where there is family violence or child abuse. Sifris and Parker108 recommend that these concerns be addressed through four fundamental

changes to the FDR process: (1) by improving screening processes and by legislatively mandating for consistent, mandatory and reportable screening processes to be undertaken in relation to every family before FDR is undertaken; (2) by amending s 60I(9) to make it unnecessary for the court to be satisfied that there are ‘reasonable’ grounds to believe that family violence of abuse has been perpetrated or that there is a risk of such conduct; (3) by ensuring that information revealed during intake sessions about issues of violence and abuse is not kept confidential and is available to the family law courts; and (4) by inserting a note at the end of s 60(9)(b) reminding the reader of the definitions of family violence and child abuse (as amended in 2010) to draw a connection between these definitions and the exception in s 60(9) (b) to the requirement for a s 60I(7) certificate. 2.41 In addition to unsuitability of FDR where there is a history of violence between the parties, other research points to shortfalls in the effectiveness of FDR to assist some separated parties. In an exploratory qualitative study of the experience of 60 parents who had separated, all resident in Victoria, the participants were interviewed annually over three years (2009, 2010 and 2011) about their parenting and financial arrangements, including the FDR and family law services [page 81] they used in the course of making or changing those arrangements.109 Where both parties were cooperative and able to negotiate, they tended to describe positive experiences and outcomes.110 The strongest criticism from participants who expressed dissatisfaction with the services they received and the post-separation outcomes was directed at the inability of FDR and FDR practitioners to assist them. The study indicates that some separating parents had difficulty accessing the services they

needed at the right time. Participants also experienced difficulties because the focus of FRCs was (and still is) predominantly on parenting issues rather than financial issues, and because of the absence of readily accessible and affordable legal services.111

FDR processes within the court system 2.42 Over the past decade, with more disputes being resolved outside the court system, increasingly the cases coming to the Family Court are made up of complex matters which often involve multiple parenting or financial issues that have higher levels of conflict between the parties. The experience has been that parties in these cases are less likely to arrive at an agreement. Consequently, while only approximately 15 per cent of court matters result in a judgment, this reflects a lower rate of settlement of court matters than pre-2006.112 Efforts to resolve family law disputes and settle claims do not end once a matter is before the court. In addition to the FDR processes operating outside the court system, there are a number of FDR processes operating within the court system. These processes draw on the expertise of family consultants as well as judicial officers.

Family consultants 2.43 The 2006 reforms saw the creation of the ‘family consultant’. Family consultants are psychologists and social workers who specialise in child and family issues following separation and divorce.113 They work within the court system to assist parties to resolve their dispute, and to assist the court in determining the best outcomes for children. Prior to the 2006 amendments, family court counsellors had two functions: to try and resolve disputes between parties, and to write ‘family reports’. A family report sets out all issues relating to the care, welfare or

development of the child, which may be received in evidence: s 62G. [page 82] Communications with counsellors were privileged (see 2.57) at the resolution stage but not at the determination stage, when a counsellor submitted the family report. The counsellor — or as they later became known the Family Court mediator — who conducted the FDR session would not write the family report; that was done by another member of the counselling service. Whereas before the 2006 reforms there were court-based family counsellors as well as family counselling services in the community, now there are only court-based family consultants and their roles are somewhat different: FLA Pt III. Communications with family consultants are no longer confidential at any stage of the court process: see 2.63. In addition to the other functions set out in s 11A, however, it is clear that it remains one of their roles to help ‘people involved in … proceedings to resolve disputes’: s 11A(c). Family consultants also have an advisory role. In instances where the court has the power to order a person to attend counselling, FDR, or a particular course, program or service, the court may seek advice from a family consultant regarding the appropriate course of action: s 11E. If parties are unable to resolve issues, the court may order the family consultant to prepare a family report. The reporting function of the family consultants remains a pivotal role as this is one of the mechanisms through which the views of the child are made known to the court. The court does not always follow the recommendations of the family consultant,114 but should provide adequate reasons for departing from or ignoring their recommendations.115 In a bid to ensure that the reporting function of family

consultants is uniform and of a consistent and high standard across Australia, the Family Court of Australia, Family Court of Western Australia and Federal Circuit Court of Australia on 11 February 2015 launched the Australian Standards of Practice for Family Assessments and Reporting.116 2.44 The family consultant role is to ensure that the court and the parties are assisted throughout the litigation process by experienced professionals from the behavioural sciences. The functions of the family consultant, set out in s 11A, highlight the goal of non-judicial dispute resolution (including the court taking advice from the family consultant on how best to achieve this), as well as ensuring the court is provided with independent evidence in relation to parenting disputes. In addition to taking advice from, and receiving the evidence of, family consultants, the court may order one or both parties and their children to attend [page 83] a meeting, or series of meetings, with a family consultant. When meeting with the family consultant, the parties and/or their children are not entitled to legal representation:117 see 8.92. In carrying out the orders of the court, a family consultant may interview children, advise the court of the children’s views and assist the court to work towards a child-focused resolution: s 11F. If a person fails to comply with an order that he or she arrange for a child to attend a meeting with a family consultant, or if a child fails to attend a meeting with a family consultant, the consultant must report the failure to the court and the court may make any orders that it considers appropriate: s 11G(1A). Following the making of interim or final parenting orders, family consultants may also be required to supervise compliance with orders: s 65L. For example, in Harridge v Harridge,118 Murphy J

ordered the family consultant to oversee arrangements for the father to see his children under the supervision of their paternal grandparents. However, it would seem that due to resource constraints, supervisory orders of this sort are not common. Nonetheless, and as one would expect, family consultants are playing a pivotal role in trying to ensure that matters that have come to court are resolved without a judicial determination where possible, and where that is not possible, that the interests of children are protected. 2.45 Family consultants have the same immunity as judges when performing their functions: s 11D. Unlike FDR and family counselling, if a person has been informed that communications with, or in front of, a family consultant (or a professional to whom the person has been referred by the family consultant) are admissible, such communications will be admissible in proceedings under the FLA: s 11C(1) and (2).119 Such communications are thus not privileged. However, in circumstances involving admissions by an adult that indicate a child has been abused or is at risk of abuse, or a disclosure by a child that indicates that they have been abused or are at risk of abuse, such admissions will be admissible even though the person has not been informed that such communications are admissible: s 11C(3). 2.46 In Hazan & Elias,120 the father sought an order that the family consultant be removed, and that her two reports be excluded from evidence and a new report be ordered. In support of this application, he sought to have an audio recording, which he had secretly made of the interview with the family consultant, admitted [page 84] into evidence. Watts J excluded this recording. After noting that

there is nothing in the wording of s 11C to indicate that it is subject to any other provision in the FLA or any other Act, he disagreed with the father’s argument that, given the clear wording of s 11C, this section ousted s 138 of the Evidence Act 1995 (Cth) which favours the exclusion of evidence that is illegally or improperly obtained. His Honour referred to the ‘golden rule’ of statutory construction that ‘the grammatical and ordinary sense of the words is to be adhered to unless that would lead to … absurdity … or inconsistency with the rest of the [statute]’. His Honour found the ordinary meaning of s 11C when read in the context of the rest of the statute to be unreasonable. Accordingly, he read s 11C of the FLA down so that the section is subject to the provisions of the Evidence Act.

Conciliation and case assessment conferences 2.47 Conciliation is a process in which the participants, with the assistance of the conciliator, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. Family Court of Australia conciliations are conducted by registrars, who will provide advice on the matters in dispute and/or options for resolution, but will not make a determination. Conciliation is now not referred to directly in the scheme of dispute resolution set up under the FLA,121 though parties can always engage in some form of private conciliation to resolve their dispute. Like other courts, the Family Courts have for many years provided mandatory pre-trial processes aimed at encouraging parties to settle by agreement without proceeding all the way to trial. Before a matter reaches trial, the parties may be required to participate in a number of these processes, which are presided over by court officers and at which consent orders can be made if agreement is reached. At the very outset of a matter in the Family Court, other than in cases relating to parenting matters only, after filing an application — unless there are urgent interim matters to be determined — a

case will be listed for a ‘case assessment conference’, one of the goals of which is an early opportunity to reach an agreement with the assistance of a registrar: Family Law Rules 2004 (Cth) r 12.03. Parties must exchange financial information prior to the conference. If the matter is not resolved, then orders will be made for the future conduct of the matter: r 12.03(4). If the proceedings involve parenting issues that are not settled at the end of the conference, the parties may be ordered to attend a Child Responsive Program: r 12.03(5). The parties may also be sent to a further [page 85] dispute resolution process (such as FDR) at this point, or indeed at any point of the proceedings: see s 13C. 2.48 In financial matters, as the case progresses towards trial there is at least one more requirement to encourage parties to resolve the matter. Parties will, almost invariably, be required to attend a ‘conciliation conference’: s 79(9).122 In the Family Court, such a conference is compulsory unless the court is satisfied that there are special circumstances, an order needs to be made urgently, or it is not practicable to require the parties to attend such a conference: s 79(9)(b) and (c). The parties and their lawyers must attend the conference. Generally, the conference will be conducted with all the parties and their lawyers present; however, if there are safety issues, the parties may be situated in separate rooms. There are also facilities for the conference to be conducted through video-link or teleconference. There are strict requirements about the duty to file the relevant financial documentation, the time period in which it must be filed, and generally the exchange of financial information prior to the conference: rr 12.05 and 12.06. The conference must be conducted by a registrar or deputy

registrar of the Family Court who attempts to guide parties towards settlement by exploring options. The registrar cannot provide legal advice, but they can discuss legal principles. Frequently, the registrar will provide an opinion as to the likely range of orders if the matter proceeds to a hearing. The disadvantage of such conferences is that generally, quite some time and money have already been expended by the parties by the time they get there. The advantages of the conciliation conference are that all the relevant information is available, there is a registrar present and able to help focus the parties on the likely outcome of the case, and the proceedings are confidential: s 131(1) of the Evidence Act 1995 (Cth). Thus, there is a very real prospect of matters settling at this stage. If agreement is not reached on all matters, the registrar will conduct a procedural hearing and make procedural orders regarding the further conduct of the case. 2.49 Conciliation conferences are primarily geared towards resolving financial issues. Parenting matters will only be considered at a conciliation conference where there are also financial matters in dispute. If the parties consent to the resolution of children’s issues, the registrar will only make orders in relation to these after taking into account the child welfare provisions. If the dispute is only about parenting, then the court may, but does not have to, send the parties to counselling or FDR prior to trial: s 13C. One factor that may be relevant in this decision is the type of s 60I certificate provided, but the nature of the case will also influence whether this is ordered. [page 86] 2.50 Within the Family Court system, additional FDR processes have been introduced. Parties are encouraged to participate in

mediation-style conferences conducted by private practitioners, with programs running in Melbourne, Brisbane, Sydney and Perth. In addition, in children’s matters the ‘less adversarial trial’ processes (LAT) (see 8.69–8.71) and the Magellan program (see 3.54) are fully operational.

Obligations on advisers 2.51 The FLA creates obligations on ‘advisers’ in parenting matters to provide people with specific information. Advisers are defined as legal practitioners, family counsellors, FDR practitioners and family consultants: ss 60D(2) and 63DA(5). Advisers are obliged to alert clients that if they resolve their issues, they may enter into a parenting plan: see 8.40. A detailed explanation should also be provided of what ought to be included in a parenting plan, the effect of such a plan on an existing or future parenting order, and the programs that are available should the parties have difficulties complying with the plan: s 63DA(2). Advisers are also obliged to inform their clients that if it is reasonably practicable and in the child’s best interests, they should consider the child spending equal time with each parent. If not, then if it is reasonably practicable and in the child’s best interests, they should consider the child spending substantial and significant time with each parent: s 63DA(2) and see 8.40. These obligations emphasise the dual aims of the legislation to promote shared post-separation parenting and to encourage parties to settle their disputes without resorting to litigation. 2.52 The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) introduced a new Subdiv BB into the FLA — Best interests of the child: Adviser’s obligations. The aims of these amendments are to ‘strengthen advisers’’ obligations by requiring ‘family consultants, family counsellors, family dispute resolution practitioners and legal practitioners to

prioritise the safety of children’.123 These amendments reflect the need to prioritise the safety of children over all other considerations, including the need to establish a meaningful relationship with both parents.124 Studies had also indicated that there was a sense of disbelief regarding violence and, even when believed, clients [page 87] were advised not to disclose violence for fear of the repercussions on the outcome of parenting arrangements and, in the event of false allegations, cost penalties.125 The 2011 legislation has clarified and strengthened the obligations of advisers to ensure that the safety of children is the first priority. According to the amended section, when an adviser provides advice or assistance in relation to parental responsibility, they must advise the client that they should regard the interests of the child as the paramount consideration. Advisers are also obliged to advise the client of the primary considerations contained in s 60CC(2), with a direction that priority must be given to protecting a child from harm and abuse: s 60D. These amendments accord with the shift in emphasis from establishing meaningful relationships to protecting children from harm. This obligation is reinforced in s 63DA, which details specifically the duties of advisers, and commences with the direction that the obligation of advisers under s 63DA are ‘in addition’ to those contained in s 60D: s 63DA(1A). Since the coming into operation of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), the obligations contained in s 63DA(2) are thus tempered with the overarching consideration of protecting children from harm and abuse.

Family counselling in respect of children 2.53 One of the innovations introduced by the FLA, and one which more than any other may be thought to justify the epithet of the ‘helping court’, was the introduction of welfare and counselling officers attached to the court, the aim of which was to help smooth out some of the animosities and conflicts that are so often evident in situations of family breakdown. Nowhere is this approach more justified than where children are involved. The Act seeks to ensure the availability of counselling for those who seek it (irrespective of whether proceedings have been instituted), as well as requiring in some circumstances that parties attend counselling where there are proceedings before the court in relation to the care, welfare or development of a child. 2.54 Prior to 2006, the provisions dealing with counselling (both within, and outside, the court) in respect of children were dealt with in Div 3 of Pt VII. However, the 2006 reforms had the effect of re-badging those Family Court counsellors working within the court as ‘family consultants’ and giving them a different role: see 2.43. Thus, ‘family counselling’ under the new law is primarily the province of what the FLA refers to as ‘non-court based’ counsellors. The provisions governing family counselling are now found in Pt II of the FLA. Family counselling may be accessed through FRCs as well as other individuals and organisations. [page 88] ‘Family counselling’ is ‘a process in which a family counsellor helps people to deal with personal or interpersonal issues relating to marriage, separation or divorce, including issues relating to the care of children’.126 General information is provided about the roles and responsibilities of family counsellors, and others involved in the provision of services to families, in Family

Counsellors in the Family Law System, a paper prepared by the Family Law Section of the Federal Attorney-General’s Department.127 Part II Div 2 of the FLA specifically deals with family counselling. ‘Family counselling’ is defined in s 10B as a process by which ‘family counsellors’ (defined in s 10C) help people deal with the ‘personal and interpersonal’ issues surrounding marriage, separation and divorce, including issues that relate to the care of children. People can access non-court based family counsellors voluntarily. Under s 13C, the court can also order one or more parties to attend counselling in relation to child matters. Further, under s 65F(2)(a), except in certain circumstances, a court must not make a parenting order unless the parties have attended counselling: see 2.54. There is a range of non-court based services that can provide counselling to parties. To understand the role this process plays in resolving disputes out of court, one needs to consider Pt IIIB, which sets out the court’s powers in relation to these (and court-based) services. The objects of Pt IIIB include facilitating access to family counselling (s 13A(1)(a)) and giving the court the power to require parties to make use of court or non-court based services (s 13A(1)(d)). 2.55 In keeping with the intention of promoting reconciliation (see 2.2), s 13B requires courts hearing divorce, parenting or property proceedings to consider the possibility of reconciliation and permits the court to adjourn proceedings if it considers reconciliation is a reasonable possibility. If a court takes that step, it must advise the parties to attend family counselling. Under s 13C, at any stage in any proceedings under the Act, the court may order the parties to attend family counselling; further, it may suggest the purpose of the counselling and order the parties to encourage relevant third parties to attend counselling. Adjournments based on the possibility of reconciliation are no doubt uncommon, but it is common for the court to require parties to attend family counselling. While that counselling is

more therapeutic than focused on resolution of a particular dispute, [page 89] it is obviously the case that resolving underlying conflicts and tensions between the parties increases the chances of the parties reaching some sort of agreement. 2.56 The court is precluded from making a final order in contested proceedings for a parenting order in relation to a child, unless the parties to the proceedings have attended counselling to discuss the matter to which the proceedings relate: s 65F(2). The only exceptions to this requirement are those expressly stated in the legislation, namely where the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence) that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as required (s 65F(2)(b)), or where the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference: s 65F(2)(c). Section 65F substantially re-enacts the former s 64(1B), which itself was the product of an amendment introduced into the Act in 1983. The object of this amendment was to underscore the importance of this particular form of non-judicial dispute resolution and to ensure that where possible, parties have the benefit of counselling to assist in resolving their differences, in the hope that a litigated outcome would become unnecessary. This focus on non-judicial resolution of disputes is reinforced by the pre-action procedures (see 2.25–2.26) and out–of-court dispute resolution processes. It should be remembered, though, that the broad aims of counselling are wider than simply resolving a particular dispute, as seen by the definition in s 10B.

Confidentiality and admissibility of communications in family counselling and FDR 2.57 Confidentiality is well accepted as an important feature of counselling and mediation. There are a number of reasons for the asserted centrality of confidentiality, including the greater likelihood that parties will be willing to participate in the process if they know that they can speak openly in the process. With respect to family counselling, Carmody J observed: The assurance of confidentiality improves the chances of reconciliation or conciliation. Without it parties are likely to be reluctant to participate fully and frankly in the process. For this reason counsellors are sworn to secrecy and as a ground rule what is said in counselling is without prejudice and legally immune from disclosure elsewhere.128

There may also be a greater willingness of professionals to offer counselling and conduct mediations in private if they know that they cannot be required to [page 90] disclose what was said during the process.129 Notwithstanding acceptance of the importance of confidentiality to both processes, and to family counselling and mediation, as Astor and Chinkin130 explain, there is a dilemma. One the one hand, confidentiality is perceived as essential to the integrity and effectiveness of the process. On the other hand, absolute confidentiality is sometimes unrealistic and even undesirable.131 In counselling and FDR, it is unrealistic to expect that parties will not sometimes discuss with family and friends what happened and what was said during the process. The confidentiality requirement in FDR is directed, essentially, at ensuring that settlement offers and admissions made by the parties are not disclosed by the counsellor or mediator and are not admissible as evidence in subsequent family law proceedings between the parties, rather than protecting

professionals.132 In this way, the ‘almost blanket protection provided by Part II of the Act’ confers significant protection on the parties in the style of the common law ‘without prejudice’ privilege’.133 2.58 ‘Confidentiality’ is sometimes used generally to refer both to the non-disclosure requirements in the Act and the rules of ‘admissibility’ that are based on the common law privilege attached to communications made in confidential processes.134 In FDR, it is the FLA or s 131 of the Evidence Act 1995 (Cth) that limits the admissibility in Family Court proceedings of evidence of what was said in counselling and FDR. Confusion can result from the use of the words ‘confidentiality’, ‘privilege’ and ‘admissibilty’ because they are often used interchangeably.135 ‘Confidentiality’ in the counselling and dispute resolution context refers to the obligation on parties, counsellors and FDR practitioners not to disclose to any third party (including in court proceedings) information given in confidence. Privilege and admissibility rules operate to exclude evidence of confidential communications in court proceedings. The rules of both confidentiality and admissibility involve efforts to balance the competing interests of supporting the integrity of the process and to ensure that a court has the benefit of all available evidence. A successful claim of privilege renders evidence of what was said or documents exchanged inadmissible in court. The law of privilege, therefore, has narrower application than the law of confidentiality. In Part II [page 91] of the Act, ‘admissibility’ is the word used to prescribe what communications are inadmissible as evidence. 2.59 The provisions regulating the confidentiality and admissibility of communications made during family counselling (ss 10D and 10E) and FDR are contained in Part II Div 2 of the Act:

ss 10H and 10J. These provisions are almost identical. Under ss 10D and 10H, communications made in counselling or FDR may not be disclosed by the counsellor or FDR practitioner except as permitted by those sections. Two key issues arise in relation to confidentiality of communications within counselling and FDR: disclosure and admissibility. Plainly, if something cannot be disclosed, then it will be inadmissible in court. However, a counsellor or an FDR practitioner may be able to disclose a communication, and yet it may not be admissible in court. So, the general starting point is that communications are confidential. The exceptions to this privilege are where: disclosure is required under some other law (then disclosure is mandatory) (ss 10D(2) and 10H(2)); consent is given by the person making the disclosure (ss 10D(3) and 10H(3)); or the disclosure is made to protect a child or person from harm: ss 10D(4) and 10H(4). The latter two exceptions are permissive, in that the FDR practitioner may disclose, but is under no legal obligation to do so. 2.60 The decision of Unitingcare — Unifam Counselling and Mediation v Harkiss136 dealt with disclosure of communications during counselling. Coleman J set aside the order of Altobelli FM directing Unifam to comply with a subpoena, which sought production of ‘all records including any reports or allegations, counselling notes, referrals, and file notes’. UP According to Coleman J, ‘may’ (disclose upon consent) in s 10D(3) does not mean ‘must’. The fact that the parties had consented to Unifam disclosing the information (s 10D(3)(a)) meant that s 10D(3) was potentially enlivened, but did not in itself mean that Unifam had no discretion whether or not to disclose. If the documents subpoenaed contained an admission by an adult that a child under 18 had been abused or was at risk of abuse, or a disclosure by a child under 18 indicating that a child had been abused or was at risk of abuse (s 10E(2)), the court could compel production of the documents. However, such documents would not necessarily

have been admissible having regard to the concluding words of s 10E(2): ‘unless in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources’. In French v Winter,137 Demack FM, referring to and following Coleman J’s decision in Unitingcare — Unifam Counselling and Mediation v Harkiss, decided that given the objection of the FDR practitioner to disclosing communications made during FDR, the material remained confidential and the FDR practitioner was not obliged to produce the material pursuant to a subpoena. [page 92] In Trapp v Vonne,138 the parties had previously attended a ‘family counsellor’ (for the purposes of s 10C of the Act) called LifeWorks Australia (LifeWorks) for ‘family counselling’ (within the meaning of s 10D of the Act). In subsequent parenting proceedings before the Federal Magistrates Court (now the Federal Circuit Court), the wife applied for a subpoena to issue to LifeWorks, a ‘family counsellor’. The wife unsuccessfully argued that material referred to in the subpoena could be disclosed to the court pursuant to ss 10D and 10E of the Act, in so far as it contained admissions by the husband with respect to allegations of abuse and violence. LifeWorks opposed the issue of the subpoena. Riethmuller FM was not satisfied on the facts that that there was an issue relating to ‘abuse’ or ‘risk of abuse’ of one of the children as contemplated by s 10E(2) and ordered the subpoena struck out. The wife was ordered to pay LifeWorks’ costs.139 Degraves v Searle140 illustrates the difference between the confidentiality and admissibility provisions. In this case, the parties to parenting proceedings had been ordered to attend a post-separation parenting program. Harman J was satisfied this program, offered by Unifam, came within the definition of ‘family counselling’ in s 10B.141 An incident occurred which led the counsellor to terminate the parties’ participation in the program.

Subsequently, a family counsellor with Unifam telephoned the wife and informed her that the husband had made certain threats against the wife in a separate session. The wife recited this communication in an affidavit in support of parenting orders which restrained the husband from having contact with the wife and their children. Although the fact of the telephone call was admissible, the issue was whether the paragraphs in the affidavit quoting the counsellor were admissible. Harman J ruled that they were not. His Honour was not satisfied that a risk of abuse to the children could be made out so as to bring the affidavit evidence within the exception to inadmissibility in s 10E(2). Section 10E(2) (a) may be satisfied if a clear threat is made by one parent in circumstances that fall within the definition of ‘child abuse’ as defined in s 4(1). The relevant paragraphs of the affidavit were struck out. His Honour made it clear that he made no finding that there had been any wrongdoing on the part of any employee of Unifam. In other words, the disclosure was lawful even though the information disclosed was not admissible evidence. 2.61 As Unitingcare and Degraves v Searle show, when a communication may, or must, be disclosed under s 10D or s 10H, this does not necessarily render it admissible in court: ss 10D(6) and 10H(7). Sections 10E and 10J go on to say that communications in counselling and FDR are not admissible, except as provided for [page 93] in ss 10E(2) and 10J(2).142 Thus, only admissions by adults or children indicating that a child has been abused, or is at risk of abuse, are admissible, and only then if the court is satisfied that there is not sufficient evidence available from other sources of the admission or disclosure. The definition of abuse is found in s 4(1) of the Act. With the coming into operation of the Family Law

Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), ‘abuse’ includes not only assault, sexual assault and a child being used as a sexual object; it also includes serious psychological harm and serious neglect of a child: see 3.3. Arguably, this expanded definition of ‘abuse’ will extend the circumstances in which a court can be satisfied under s 10E(2)(b) or s 10 J(2)(b) that statements made during counselling or FDR of the nature sought to be admitted in Unitingcare would be admissible as an exception to the exclusionary rule as ‘an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse’.143 The discretionary exceptions in relation to harm (ss 10D(4) and 10H(4)) include, among other things, any disclosure the counsellor or FDR practitioner reasonably believes is necessary to: protect a child from risk of harm (whether physical or psychological); prevent or lessen a serious and imminent threat to the life, health or property of a person, or reporting the commission or preventing the likely commission of an offence involving violence or a threat of violence to a person or the intentional damage or threat of damage to the property of a person; or assist an independent children’s lawyer to properly represent the interests of the child. The 2010 joint report of the Australian Law Reform Commission and the New South Wales Law Reform Commission recommended the removal of the ‘imminent’ requirement, as family violence may manifest over a number of years and thus may be difficult to characterise as ‘imminent’.144 To date, this recommendation has not been acted upon. Other cases reveal difficulties that arise from the strict application of the confidentiality and inadmissibility provisions.145 The effect of these provisions is that often what is

said in counselling and FRD processes — including information about [page 94] family violence and abuse — that would be of potential value to decision-makers in the Family Courts is not disclosable or willingly disclosed; and even if it is, it may still be unavailable as evidence to decision-makers in subsequent family law proceedings. In Roux v Herman,146 Riethmuller FM was required to rule in a parenting case on the issue of admissibility of a document, contained within an envelope that remained unopened pending a determination the issue. The case before the court concerned an issue as to which high school the parties’ child should attend. The parties had attended FDR. The mother sought to tender a parenting agreement said to have been made during the course of that process as evidence relevant to the parenting issue. The father objected, relying on s 10J. His Honour concluded that a parenting plan entered into during the course of, or at the end of, a FDR process147 is prima facie admissible into evidence for the purposes of having regard to it under s 65DAB, and was not inadmissible within the terms of s 10J. In this case, the father argued that that he only entered into the agreement under duress. Section 63C(1A) specifically provides that an agreement ‘is not a parenting plan for the purpose of this Act unless it is made free from any threat, duress or coercion’. Riethmuller FM concluded that the effect of s 10J, which renders evidence of anything said by or in the company of an FDR practitioner inadmissible, was to prevent the husband leading evidence to substantiate his claim of duress. In the absence of that evidence, his Honour considered himself unable to conclude that the document the wife sought to admit was a parenting plan, and therefore it was inadmissible.148 2.62

In a number of cases the court has been required to

determine the scope of the protective provisions of Part II. How far does the counselling or FDR ‘process’ extend and at what point does the ‘cone of silence’149 in the Act descend?150 In Smirnov v Turova,151 Walters FM held that ‘attachment therapy’ sessions were not family counselling for the purposes of ss 10D and 10E of the Act. Having regard to: … the very serious consequences that flow from the characterisation of a process as ‘family counselling’ — which consequences obviously include the possibility of evidence which is highly relevant to the safety or best interests of a child being excluded from consideration in legal proceedings where the

[page 95] court is legislatively compelled to regard the best interests of the child as the paramount consideration (and, in doing so, is also legislatively compelled to consider, among other things, the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence) — it seems to me that the applicability of provisions such as ss 10D and 10E should be clearly and affirmatively demonstrated.152

His Honour was not persuaded that the provision had been demonstrated to apply in the present case. In Rastall v Ball,153 Riethmuller FM was required to determine whether evidence of what occurred in an intake session was inadmissible under ss 10H and 10J. The essential inquiry was whether the FLA and Regulations required a two-stage process, in which case it might successfully be argued that the statutory protections apply to an intake session as well as any FDR sessions that follow the intake assessment. His Honour did not accept this argument and concluded that the Act does not apply to the intake process. This means that parties and an FDR practitioner can be subpoenaed to give evidence of what was communicated during an intake session. In Harricks v Harricks,154 Harman J held that a report prepared by a child psychologist and addressed to a mediator was not excluded under s 10J, as it was not evidence of anything said or admissions made to or in the presence of an FDR

practitioner. In Roux v Harman,155 Riethmuller FM held that a parenting plan, entered into as a result of FDR, was admissible as it was not excluded by the operation of s 10J. 2.63 Prior to the 2006 reforms, communications between parties and Family Court mediators were confidential and inadmissible in subsequent proceedings: s 19N. The confidentiality requirement was removed by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) and family consultants can give sworn evidence if a matter proceeds to trial. This means that parties engaged in out-of-court FDR know that what they say in that setting is, on the whole, inadmissible in subsequent court proceedings; but that if they proceed to court, then anything said during a case assessment conference conducted by a family consultant can be submitted as evidence. 2.64 There have been numerous calls for the disclosure and admissibility provisions in the FLA to be reviewed and amended. Changes are urged to ss 10D and 10E to strengthen the mandatory disclosure requirements.156 Section 10J [page 96] is said to create problems because it operates to exclude important evidence.157 In particular, that section is said to undermine the efficacy of any FDR process158 and hamper the efforts of courts and FDR professionals to protect vulnerable parties in the family law system.159 The most pressing concerns relate to protection of family members and children from family violence and abuse.160 Other reform proposals include the amendment of the definition of FDR in s 10F of the Act and reg 25 to expressly include assessment or ‘intake’ as part of the FDR process in order to overcome the exclusion of these protective provisions, as held in Rastall v Ball.161 This would mean that FDR, and attendant

protection of disclosures, would commence from first contact with an FDR practitioner.162 2.65 The need for the law to protect the confidentiality of communications within counselling and FDR processes through the operation of the provisions in Pt II is often stated and rarely challenged. Confidentiality of private, consensual family counselling and dispute resolution is considered to be essential to the appeal and the effectiveness of these processes. At the same time, there is a dearth of empirical research to support the strongly and long-held view these protections are essential to the integrity of family mediation. This has recently been pointed out by the Chief Justice of the Family Court, the Honourable Diana Bryant, and a judge of the Federal Circuit Court, Tom Altobelli, in a book chapter published by the AIFS.163 They express their concern that the confidentiality provisions in Pt II of the Act operate as a barrier to sharing critically important information about families with other people. They refer to a survey, conducted by the court in 2012, in which the family consultants surveyed reported that the parents they worked with in court showed a high level of indifference to issues of confidentiality. All 94 family consultants in Australia were invited to participate in the survey. A total [page 97] of 49 replied to the questionnaire nationally.164 In summary, ‘the vast majority of respondents (94%) reported that parents either never or rarely express concerns about the lack of confidentiality of s 11F conferences’.165 The authors report that it was made clear in advance to participants in the s 11F conferences that the process is not confidential.166 In the light of the survey results and in a bid to ensure that evidence that could assist the court to assess the risk of and make related decisions about family violence and abuse is not excluded, Chief Justice Bryant and Justice Altobelli

call for a reconsideration of the principle of confidentiality of FDR processes. At the very least, they call for more research into confidentiality in consensual FDR processes.167 Interestingly, in its 2011 report Maintaining and Enhancing the Efficacy of ADR Processes, from Principles to Practice through People,168 NADRAC (see 2.9) recommended that legislation be enacted providing for a general rule of inadmissibility of ADR communications; subject, however, to leave being granted by a court to permit disclosure if it is in the ‘public interest’.169 NADRAC thus recommended a discretionary, rather than a rulebased approach. It also recommended that ADR practitioners not be compellable to give evidence of communications during ADR processes.170 1.

H Finlay, ‘Towards Non-adversary Proceedings in Family Law’ (1983) 10 Sydney Law Review 61 at 68–72.

2.

L Young, ‘Australia: Reflections on the Shared Parenting Experience’ in B Aitkin (ed), International Survey of Family Law 2012 Edition, Jordan Publishing, Bristol, 2012, p 20. M King et al, Non-Adversarial Justice, 2nd ed, Federation Press, Sydney, 2014, p 136.

3. 4. 5.

Family Court of Australia, Annual Report 2005–06, p 43. Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2005, House of Representatives, 2008, p 1.

6. 7.

M King et al, Non-Adversarial Justice, 2nd ed, Federation Press, Sydney, 2014, Ch 8. H Astor and C Chinkin, Dispute Resolution in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2002, p 337.

8.

Information about FDR in Australia is available at www.familyrelationships.gov.au/Services/FamilyLawServices/FDR/Pages/default.aspx (accessed 11 February 2016). Australian Government, A New Family Law System: Government Response to Every Picture Tells a Story, June 2005, p 1.

9. 10. 11. 12. 13. 14.

Information about FRCs is available at www.familyrelationships.gov.au/Services/FRC/Pages/default.aspx (accessed 11 February 2016). P Parkinson, Family Law and the Indissolubility of Parenthood, Cambridge University Press, USA, 2011, pp 187–96. See www.familyrelationships.gov.au/Services/FRC/Pages/default.aspx (accessed 11 February 2016). See www.familyrelationships.gov.au/Services/FRC/Pages/MoreFRCInformation1.aspx (accessed 10 February 2016). R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian

15.

16. 17. 18.

19. 20. 21.

22.

23. 24.

25. 26.

Government, Commonwealth of Australia, 2009, pp 304–5. The trend away from courts as the ‘main pathway’ for making parenting arrangements towards FDR providers and lawyers since the enactment of the 2006 family law reforms is supported by the evidence from the following report: R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments Synthesis Report, October 2015, pp x, 21. R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian Government, Commonwealth of Australia, 2009, p 50. Subsequent research confirms this trend in court filings and reveals that for the period 2004–05 through to the end of the 2012–13 financial year, filings for final orders with respect to children only, children plus property and property only applications declined by 14 per cent: see R Kaspiew et al, Family Law Court Filings 2004–05 to 2012–13, AIFS and the Australian Government, Commonwealth of Australia, 2015, p 4. R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian Government, Commonwealth of Australia, 2009, p 61. L Moloney et al, ‘Evaluating the Work of Australia’s Family Relationship Centres: Evidence from the First 5 Years’ (2013) 51 Family Court Review 234 at 236–7. Commonwealth Government, Operational Framework for Family Relationship Centres, Department of Families Housing, Community Services and Indigenous Affairs, revised August 2011, available at www.fahcsia.gov.au (accessed 12 April 2016). T Altobelli, ‘A Generational Change in Family Dispute Resolution in Australia’ (2006) 17 Australian Dispute Resolution Journal 140 at 144. See www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx (accessed 25 February 2016). NADRAC, Maintaining and Enhancing the Integrity of ADR Processes: From Principles to Practice Through People, Commonwealth of Australia, Attorney-General’s Department, February 2011. NADRAC, Your Guide to Dispute Resolution, Commonwealth of Australia, AttorneyGeneral’s Department, 2012, www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/your-guide-to-dispute-resolution.pdf (accessed 17 February 2016). See www.msb.org.au/mediator-standards/national-mediator-accreditation-system-nmas (accessed 17 February 2016). Details of the requirements to be satisfied for accredited as an FDR practitioner are available at www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Pages/Foraccreditedfamilydisputeresolutionpractitioners.aspx (accessed 17 February 2016). For a discussion of intake, see L Kolchanski, ‘Family Dispute Resolution — The Importance of Intake’ (2011) 1 Family Law Review 164. Commonwealth of Australia, Attorney-General’s Department, July 2008, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Documents/Fact%20Sheet%20Screening%20and%20Assessment%20Framework.pdf (accessed 26 February 2016). See also the FDR Screening and Assessment Fact Sheet published by the Commonwealth of Australia, Attorney-General’s Department, September 2012, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyDisputeResolution/Documents/Fact%20sheet%20Screening%20and%20Assessment.pdf (accessed 26 February

2016). 27. 28.

L Fisher and M Brandon, Mediating with Families, 3rd ed, Thomson Reuters, Riverwood, 2012, p 25. For an overview of the Australian family law dispute resolution system, see D Cooper and M Brandon, ‘Navigating Complexities of the Family Law Dispute Resolution System in Parenting Cases’ (2009) 23 Australian Journal of Family Law 30.

29. 30.

Family Law Rules Sch 1, Pt 1, item 1(1)(a). R Fells, Effective Negotiation: From Research to Results, Cambridge University Press, Port Melbourne, 2012, p 3. Fells explains that an agreement might be only an agreement to walk away and that the parties might agree to an outcome, ‘but only reluctantly’: p 4.

31.

NADRAC, Your Guide to Dispute Resolution, Commonwealth of Australia, AttorneyGeneral’s Department, 2012, www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/your-guide-to-dispute-resolution.pdf (accessed 17 February 2016), pp 11–12. See, for example, K Funder, ‘Motherhood, Fatherhood: The Legal Balance’ (1991) 30 Family Matters 34. More recently, research also shows that most parents resolve their parenting arrangements without formal assistance, and diminishing minorities use each increasingly formal pathway of counselling/mediation/FDR, lawyers and courts. These pathways are more likely to be used by parents affected by family violence. The patterns are reported to show very little change between the pre- and post-2006 family law reforms introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth): R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments Synthesis Report, October 2015, p 23.

32.

33. 34.

M King et al, Non-Adversarial Justice, 2nd ed, Federation Press, Sydney, 2014, p 8. B Batagol and T Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation, Themis Press, NSW, 2011, p 5.

35.

NADRAC, Dispute Resolution Terms. Commonwealth of Australia, Attorney-General’s Department, September 2003, www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Documents/NADRAC%20Publications/Dispute%20Resolution%20Terms.PDF (accessed 17 February 2016). D Cooper and M Brandon, ‘Navigating the Complexities of the Family Law Dispute Resolution System in Parenting Cases’ (2009) 23 Australian Journal of Family Law 30 at 39.

36.

37. 38.

Ibid. For discussion of these approaches, see L Fisher and M Brandon, Mediating with Families, 3rd ed, Thomson Reuters, Riverwood, 2012, pp 25–33.

39.

H Astor, ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16 Social and Legal Studies 221. See also H Astor, ‘Rethinking Neutrality: A Theory to Inform Practice — Part I’ (2000) 11 Australian Dispute Resolution Journal 73; H Astor, ‘Rethinking Neutrality: A Theory to Inform Practice — Part II’ (2000) 11 Australian Dispute Resolution Journal 145; R Field, ‘Rethinking Mediation Ethics: A Contextual Method to Support Party Self-Determination’ (2011) 22 Australian Dispute Resolution

40. 41.

42.

43. 44.

45.

46.

47.

Journal 8; S Douglas, ‘Constructions of Neutrality in Mediation’ (2012) 23 Australian Dispute Resolution Journal 80. H Rhoades, H Astor and A Sanson, ‘A Study of Inter-professional Relationships in a Changing Family Law System’ (2009) 23 Australian Journal of Family Law 10 at 19. D Cooper and M Brandon, ‘Navigating the Complexities of the Family Law Dispute Resolution System in Parenting Cases’ (2009) 23 Australian Journal of Family Law 30 at 42. Article 12, United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UN Doc A/44/49 (1989) (entered into force 2 September 1990). L Moloney and J McIntosh, ‘Child-responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10 Journal of Family Studies 71. The contents of this table are taken directly from J McIntosh, Child Inclusion as a Principle and as Evidenced-Based Practice: Applications to Family Law Services and Related Sectors, Australian Family Law Clearinghouse, Melbourne, 2007, p 5, available at www.aifs.gov.au (accessed 17 February 2016). For a detailed overview of these procedures, see J McIntosh, Child Inclusion as a Principle and as Evidenced-based Practice Applications to Family Law Services and Related Sectors, Australian Family Law Clearinghouse, Melbourne, 2007, available at www.aifs.gov.au (accessed 17 February 2016). J McIntosh, Y Wells and C Long, ‘Child-focused and Child-inclusive Family Law Dispute Resolution: One Year Findings from a Prospective Study of Outcomes’ (2007) 13 Journal of Family Studies 8. J McIntosh, Y Wells and C Long, Children Beyond Dispute: A Four Year Follow Up Study of Outcomes of Child Focused and Child Inclusive Post-separation Family Dispute Resolution, Commonwealth of Australia, Attorney-General’s Department, April 2009, p 12.

48. 49.

Ibid. T Sourdin, Alternative Dispute Resolution, 4th ed, Thomson Reuters, Riverwood, 2012, pp 105–15.

50.

NADRAC, Glossary of Terms, (September 2003), www.ag.gov.au/LegalSystem/AlternateDisputeResolution/Pages/NADRACPublications-A-Z.aspx (accessed 17 February 2016). A Ardagh, ‘Collaborative Law in Australia: A Case Study of Family Lawyers in the Australian Capital Territory’ (2011) 1 Family Law Review 133 at 134.

51. 52.

53. 54.

For further details regarding collaborative law, see C Counsel, ‘What Is This Thing Called Collaborative Law?’ (2010) 85 Family Matters 77; T Sourdin, Alternative Dispute Resolution, 4th ed, Thomson Reuters, Riverwood, 2012, Ch 4. Family Law Council, Collaborative Practice in Family Law, AGPS, Canberra, December 2006. See New South Wales (www.legalaid.nsw.gov.au/what-we-do/family-law/family-dispute-resolution); Northern Territory (www.ntlac.nt.gov.au/legal_info/familydisputeguide.htm); Queensland (www.legalaid.qld.gov.au/Find-legal-information/Relationships-and-children/Children-and-pa-

55. 56.

57.

58. 59. 60.

61. 62. 63.

64. 65.

66.

renting/Family-dispute-resolution); South Australia (www.lsc.sa.gov.au/cb_pages/pdr.php); Tasmania (www.legalaid.tas.gov.au/need-help/family-dispute-resolution); Victoria (www.legalaid.vic.gov.au/get-legal-services-and-advice/family-dispute-resolution-victoria-legal-aid); Western Australia (www.legalaid.wa.gov.au/LegalAidServices/specialist/familyChildrensServices/Pages/FamilyDisputeResolution.aspx) (all accessed 17 February 2016). See www.legalaidact.org.au (accessed 17 February 2016) under ‘What we do’, ‘Family Dispute Resolution’. For a discussion of the history of this process, see generally, Family Law Council, The Answer from an Oracle: Arbitrating Family Law Property and Financial Matters, Discussion Paper, AGPS, Canberra, May 2007. Arbitration is not permitted as a dispute resolution process in all countries, for reasons that include public policy arguments against privatisation of decisionmaking concerning family disputes and dispute settlement. In Australia, this concern is recognised by limiting the availability of arbitration to financial matters. One common factor in the trend in common law jurisdictions to provide for and encourage arbitration of family law disputes is the pressure on courts to reduce their case loads. For discussion, see W Kennett, ‘It’s Arbitration, But Not As We Know It: Reflections on Family Law Dispute Resolution’ (2016) 30 International Journal of Law, Policy and Family 1. C Kaeser, ‘The Emergence of Arbitration in Family Law in Australia’ (2004) 5 ADR Bulletin at 3–4. See generally, M Bartfeld, ‘Family Law Arbitration’ (2007) 19 Australian Family Lawyer 37. For a discussion of the history of this process, see generally, Family Law Council, The Answer from an Oracle: Arbitrating Family Law Property and Financial Matters, Discussion Paper, AGPS, Canberra, May 2007. Family Law Council, Letter of Advice on Arbitration of Family Law Property and Financial Matters, AGPS, Canberra, 24 September 2008. See www.aiflam.org.au (accessed 17 February 2016). Family Law Amendment (Arbitration and Other Measures) Rules 2015 (Cth) (21 December 2015); Family Law Amendment (Arbitration and Other Measures) Rules 2015, Explanatory Statement, Commonwealth of Australia, www.aiflam.org.au/content/Legislation/Explanatory_Statement_-_No_255_of_2015.pdf (accessed 26 February 2016). Family Law Rules 2004 (Cth) Ch 26B. The Family Law Rules 2004 (Cth) apply to proceedings in the Family Court. The Civil Dispute Resolution Act 2011 (Cth) applies to the Federal Circuit Court, with s 3 stating: ‘The object of this Act is to ensure that, as far as possible, people take genuine steps to resolve disputes before certain civil proceedings are instituted.’ The Federal Circuit Court Rules 2001 (Cth) apply to the Federal Circuit Court. J McIntosh and H Deacon-Wood, ‘Group Interventions for Separated Parents in Entrenched Conflict: An Exploration of Evidence-based Frameworks’ (2003) 9 Journal of Family Studies 187 at 194.

67.

Rule 1.05(1); Sch 1 Pt 1 — Financial cases and r 105(1); Sch 1 Pt 2 — Parenting cases.

68. 69.

Rule 1.10(2)(d). Rule 1.05(1)(b).

70. 71.

Federal Circuit Court Rules 2001 (Cth) Div 4.2 — ‘Rules for proceedings if Civil Dispute Resolution Act applies’. Graft v Mccormick [2014] FamCAFC 28 at [20]. For criticisms of the mandatory certification requirements and proposals for reform, see A Parker, ‘Section 60I: Problems with its Operation and Proposals for Reform’ (2014) 24 Australian Family Lawyer 1.

72. 73.

See, for example, Mortland v Wheaton (No 2) [2011] FamCA 950 at [22]. McGlennan v Don [2011] FamCA 204.

74.

See, for example, Katzer v Katzer [2011] FMCAfam 85. In this case, the matter was brought on short notice as a result of an urgent application regarding schooling. Once the urgent interim matter was determined, the court ordered that the parties attend FDR. See, for example, Pandetikis v Manna [2010] FAMCA 841.

75. 76.

77.

78.

Section 13C allows the Family Court, either on its own initiative or on the application of a party or an independent children’s lawyer, to order the parties to attend family counselling and/or FDR. If the parties fail to comply with the order, the counsellor or FDR practitioner must report to the court: s 13D. Although the court has a wide discretion to award costs under s 117, it is an impermissible use of a costs power to make an order for costs solely on the basis of deterrence: Winch v Jackson [2015] FamCAFC 75.

79.

T Altobelli, ‘A Generational Change in Family Dispute Resolution in Australia’ (2006) 17 Australian Dispute Resolution Journal 140 at 146. H Astor, ‘Making a “Genuine Effort” in Family Dispute Resolution: What Does it Mean?’ (2008) 22 Australian Journal of Family Law 102 at 112 (discussed in detail at 112–16). See also H Astor, ‘Genuine Effort in Family Dispute Resolution’ (2010) 84 Family Matters 61.

80. 81.

(2010) 43 Fam LR 309; FLC ¶93-437. Ibid at 329; 84,830.

82. 83.

[2007] FamCA 568. Ibid at [47].

84.

Attorney-General, The Hon Robert McClelland, ‘Improving Access to Justice’, Speech at the launch of National Law Week, Sydney, 17 May 2010, available at http://parlinfo.aph.gov.au (accessed 29 April 2012). R Field, ‘Federal Family Law Reform in 2005: The Problems and Pitfalls for Women and Children of an Increased Emphasis on Post-separation Informal Dispute Resolution’ (2005) 5 Queensland University of Technology Law Journal 28 at 30–6.

85.

86. 87.

B Batagol and T Brown, Bargaining in the Shadow of the Law: The Case of Family Mediation, Themis Press, NSW, 2011, p 8. See, for example, R Alexander, ‘Family Mediation: Friend or Foe of Women?’ (1997)

8 Australian Dispute Resolution Journal 255. 88.

89.

90.

91.

92.

Z Rathus, ‘Shifting the Gaze: Will Past Violence be Silenced by a Further Shift of the Gaze to the Future Under the New Family Law System?’ (2007) 21 Australian Journal of Family Law 87. Australian Law Reform Commission (ALRC), Report No 114/New South Wales Law Reform Commission Report No 128, Family Violence: A National Legal Response, October 2010, [21.31]. Australian Catholic University and Attorney-General’s Department, Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line, July 2008. E Robinson and L Moloney, ‘Family Violence: Towards a Holistic Approach to Screening and Risk Assessment in Family Support Services’ (2010) 17 Australian Relationship Clearinghouse 1.

93.

R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, Summary Report, AIFS and the Australian Government, Commonwealth of Australia, 2009, [3.2.2]. Ibid, [3.4].

94. 95.

Ibid, [4.1]. Ibid, [4.2].

96.

The two-volume report of this research can be viewed at http://eprints.jcu.edu.au/16847 (accessed 12 April 2016). For a detailed discussion of this study, see T Brown et al, ‘The Effect of Family Violence on Post-separation Parenting Arrangements: The Experiences and Views of Children and Adults from Families Who Separated Post 1995 and Post 2006’ (2011) 86 Family Matters 49; D Bagshaw et al, ‘Family Violence: Parents and Children’s Experiences Before and After the 2006 Reforms’ (2010) 21 Australian Family Lawyer 11. See also R Carson, B Fehlberg and C Millward, ‘Parents’ Experiences of Family Dispute Resolution and Family Law Services in Australia Following Shared Parenting Reform: Recent Qualitative Findings’ (2013) 25 Child and Family Law Quarterly 406 at 420.

97.

98.

99.

Australian Law Reform Commission (ALRC), Report No 114/New South Wales Law Reform Commission Report No 128, Family Violence: A National Legal Response, October 2010, Recommendation 21-2. For example, the Family Law DOORS framework: see www.familylawdoors.com.au (accessed 17 February 2016).

100. Family Violence Best Practice Principles, Edition 3.2, December 2015, Family Court of Australia and Federal Circuit Court of Australia, available at www.familycourt.gov.au (accessed 26 February 2016). 101. R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report, Australian Government an Australian Institute of Family Studies, October 2015. 102. Ibid, p 33. 103. Ibid, p 44. 104. Ibid, p 21. 105. Ibid, p 32.

106. R Field and A Lynch ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Domestic Violence’ (2014) 36 Journal of Social Welfare and Family Law 392. 107. For example, the Magellan Program (see 3.53). 108. A Sifris and A Parker, ‘Family Violence and Family Law: Where To Now?’ (2014) 4 Family Law Review 3. 109. R Carson, B Fehlberg and C Millward, ‘Parents’ Experiences of Family Dispute Resolution and Family Law Services in Australia Following Shared Parenting Reform: Recent Qualitative Findings’ (2013) 25 Child and Family Law Quarterly 406. 110. Ibid at 420. 111. Ibid. 112. Family Court of Australia, Annual Report 15, p 54. 113. See information on family consultants at Family Law Courts, Publications, www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home (accessed 12 April 2016). 114. DL & W (2012) FLC ¶93-496. 115. Akston & Boyle (2010) FLC ¶93-436. 116. Family Court of Australia, Family Court of Western Australia and Federal Circuit Court of Australia, Australian Standards of Practice for Family Assessments and Reporting, 11 February 2015, www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/policies-and-procedures/asp-family-assessments-reporting (accessed 17 February 2016). 117. Tryon v Clutterbuck & Attorney General (Intervenor) (2010) 246 FLR 193; FLC ¶93-453 (leave to appeal to the High Court of Australia was refused: Tryon v Clutterbuck [2011] HCATrans 133, 13 May 2011), available at www.austlii.edu.au (accessed 12 April 2016). 118. [2010] FamCA 445. 119. Unless authorisation has been made under s 38BD of the FLA. 120. (2011) 45 Fam LR 475 at 479, citing Lord Wensleydale in Grey v Pearson (1857) 10 ER 1216 at 1234. 121. An overview of case assessment conferences and conciliation conferences in the Family Court of Australia is available at www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/, under the heading ‘About going to court and court processes’ (accessed 17 February 2016). For parenting matters in the Family Court of Western Australia, see www.familycourt.wa.gov.au (accessed 17 February 2016). 122. Family Law Rules 2004 (Cth) r 12.07; Federal Circuit Court Rules 2001 (Cth) r 10.05. 123. Replacement Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2010–11. 124. As reflected in the Chisholm Report: see R Chisholm, Family Courts Family Violence Review: A Report by Professor Richard Chisholm AM, C, Australian Government Attorney-General’s Department, Canberra, 2009. See also Family Law Council,

Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Family Violence Committee, 2009. 125. T Brown et al, ‘The Effect of Family Violence on Post-separation Parenting Arrangements: The Experiences and Views of Children and Adults from Families who Separated Post 1995 and Post 2006’ (2011) 86 Family Matters 49 at 54. 126. Family Counsellors in the Family Law System, Australian Government, AttorneyGeneral’s Department, August 2012, p 2, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyRelationshipServices/Documents/Familycounsellorsinthefamilylawsystem.pdf (accessed 29 February 2016). 127. Family Counsellors in the Family Law System, Australian Government, AttorneyGeneral’s Department, August 2012, www.ag.gov.au/FamiliesAndMarriage/Families/FamilyRelationshipServices/Documents/Familycounsellorsinthefamilylawsystem.pdf (accessed 29 February 2016). 128. Relationships Australia (Qld) v M (2006) 37 Fam LR 12 at 17. 129. H Astor and C Chinkin, Dispute Resolution in Australia, 2nd Edition, LexisNexis Butterworths, Sydney, 2002. 130. Ibid at 178. 131. Ibid. 132. Rastall v Ball (2010) 44 Fam LR 256 at 263 per Riethmuller FM. 133. Ibid. 134. H Astor and C Chinkin, Dispute Resolution in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2002, p 183. 135. R Carroll, ‘All for One and One for All or One at All — Mediation Legislation: Trends in Australia and the US’ (2002) 30 University of Western Australia Law Review 167 at 174. 136. (2011) 252 FLR 309; FLC ¶93-476. 137. [2012] FMCAfam 256. 138. (2009) 41 Fam LR 471. 139. Ibid at 478. 140. [2013] FCCA 660. 141. Ibid at [65]. 142. For example, in Kitson v Calise [2013] FCCA 1931, Harman J applied s 10J to exclude statements in an affidavit of what had been said during FDR. 143. D Cooper, ‘Inconsistencies In and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4 Family Law Review 213 at 224. 144. Australian Law Reform Commission (ALRC), Report No 114/New South Wales Law Reform Commission Report No 128, Family Violence: A National Legal Response, October 2010, [22.28], Recommendation 22-1. 145. D Cooper, ‘Inconsistencies in and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4

Family Law Review 213. 146. (2010) 244 FLR 416 147. Section 65DAB allows a court to have regard to the most recent parenting plan entered into between the child’s parents when making a parenting order in relation to a child, if doing so would be in the child’s best interests. 148. (2010) 244 FLR 416 at [29]. 149. Rastall v Ball (2010) 44 Fam LR 256 at 264 per Riethmuller FM. 150. For discussion, see R Chisholm, ‘Confidentiality and “Family Counselling” under the Family Law Act 1975’ in A Hayes and D Higgins (eds), Families, Policy and the Law, AIFS, Melbourne, 2014, p 185. 151. [2009] FMCAfam 1083. 152. Ibid at [54]. 153. (2010) 44 Fam LR 256. 154. [2014] FCCA 2724 at [26]–[34]. 155. (2010) 244 FLR 416. 156. D Cooper, ‘Inconsistencies in and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4 Family Law Review 213 at 225–6; A Sifris and A Parker, ‘Family Violence and Family Law: Where To Now?’ (2014) 4 Family Law Review 3 at 20. 157. Roux v Herman (2010) 244 FLR 416 at [30] per Riethmuller FM. 158. Ibid. 159. D Cooper, ‘Inconsistencies in and the Inadequacies of the Family Counselling and FDR Confidentiality and Admissibility Provisions: The Need for Reform’ (2014) 4 Family Law Review 213. 160. Ibid; A Sifris and A Parker, ‘Family Violence and Family Law: Where To Now?’ (2014) 4 Family Law Review 3 at 20. 161. (2010) 44 Fam LR 256. 162. J Harman, ‘Confidentiality in Family Dispute Resolution and Family Counselling: Recent Cases and Why They Matter’ (2011) 17 Journal of Family Studies 204 at 212; E Mathew, ‘Viewpoint: Concerns about the Limits of Confidentiality in FDR’ (2011) 17 Journal of Family Studies 213 at 218–19. 163. T Altobelli and D Bryant, ‘Has Confidentiality in Family Dispute Resolution Reached its Use By Date?’ in A Hayes and D Higgins (eds), Families, Policy and the Law, AIFS, Melbourne, 2014, p 195. 164. Of these, 21 had commenced work as a family consultant prior to the 2006 FLA amendments, at which time their work with families in the court had been confidential: ibid, p 200. 165. T Altobelli and D Bryant, ‘Has Confidentiality in Family Dispute Resolution Reached its Use By Date?’ in A Hayes and D Higgins (eds), Families, Policy and the Law, AIFS, Melbourne, 2014, p 203. 166. Ibid. 167. Ibid, p 205.

168. NADRAC, Maintaining and Enhancing the Efficacy of ADR Processes, from Principles to Practice through People, Commonwealth of Australia, Attorney-General’s Department, February 2011. 169. Ibid, [4.7.4]–[4.7.6]. 170. Ibid, [4.7.7].

[page 98]

3 VIOLENCE AND ABUSE ___________________________

Introduction 3.1 Over the past two to three decades, there has been a marked increase in societal willingness to acknowledge the existence of family violence and child abuse.1 Chapter 1 has already provided some preliminary discussion on violence and abuse, as well as background information and statistics indicating the gendered nature of family violence: see 1.66–1.79. Although family violence and child abuse are to some extent two separate phenomena, research indicates that ‘there is considerable overlap between the experience of family/domestic violence and children’s experiences of other direct forms of abuse and neglect’.2 Concern about family violence and child abuse and their role in parental separation and divorce gathered momentum during the 1990s. Studies began to emerge indicating the relationship between family violence and separation. A study undertaken by the Australian Institute of Family Studies (AIFS), published in 1999 and dealing with the many causes of separation, found that a small proportion of adult respondents — some 12.1 per cent of women and 7.4 per cent of men — pointed to family violence or abuse as a cause of their separation.3 Another AIFS study, published in 2000 and specifically covering the post-separation

economic repercussions of family violence, found that a high proportion of separated and divorced respondents identified family violence as an issue in their former relationship: some 65 per cent of women and 55 per cent of men.4 Studies that preceded the passing of the 2006 parenting [page 99] law reforms (see 2.3ff) thus suggested that family violence and/or child abuse were a fairly common feature in the relationships of separated or divorced couples. Yet another AIFS study, published in 2007 and investigating couples whose separation had resulted in their parenting dispute proceeding to the Federal Magistrates Court or the Family Court of Australia, found that more than half of the cases sampled evidenced allegations of adult family violence and/or child abuse.5 Prior to the Family Law Reform Act 1995 (Cth), several research studies investigating child abuse allegations in custody and access disputes indicated that while family violence had become the core business of the Family Court of Australia, the court did not manage violence well.6 These studies led to the introduction of Project Magellan, a special Family Court of Australia program for disputes where allegations of serious child abuse have been made: see 3.54. A group of studies undertaken after the introduction of the Family Law Reform Act argued that the new legislation had sidelined family violence.7 Recent research data confirms that ‘the majority of cases that proceed to court involve allegations of family violence and child abuse and one study indicates that most of these cases reflect a severe level of violence’.8

Government inquiries following the 2006 reforms

3.2 When the Commonwealth Government introduced the Family Law Amendment (Shared Parental Responsibility) Act 2006, one of the many criticisms [page 100] directed at this legislation was its potential for marginalising family violence within family law disputes.9 It was suggested that: … [e]ngagement with family law processes can lead many victims to be less safe than before, jeopardizing the value of what might appear a ‘sensible’ strategy such as leaving the relationship with an abuser.10

The government responded to these criticisms with a plan for an extensive evaluation of the legislative changes, to be carried out by the AIFS in 2009. This evaluation would cover the first three years of the operation of the 2006 reforms.11 It was to be broad and comprehensive, but was not intended to highlight the issue of family violence. Nevertheless, this study found that 26 per cent of mothers and 17 per cent of fathers had reported being physically hurt by their partners. A further 39 per cent of mothers and 36 per cent of fathers had reported emotional abuse, defined in terms of humiliation, belittling insults, property damage and threats of harm during the course of the relationship. Moreover, 72 per cent of mothers and 63 per cent of fathers who reported experiencing physical violence before separation reported that their children had witnessed violence or abuse.12 The Commonwealth Government then commissioned four further inquiries dealing directly with family violence: the Family Law Council to report on improving responses to violence in the family law system by reviewing the intersection of family violence and family law issues;13 Professor Richard Chisholm to consider family courts and family violence;14

the Australian Law Reform Commission (ALRC) in association with the New South Wales Law Reform Commission (NSWLRC) to review and propose improvements for legal frameworks regarding family violence in a number of jurisdictions, including family law;15 and [page 101] Monash University, with the University of South Australia and James Cook University, to examine the impact of family violence on decision-making and the use of family dispute resolution services on separating adults and their children post-separation. To some extent, all these reports dealt with the interrelationship between family violence, including child abuse, and family law. However, from the perspective of the need to close the system gaps and avoid overlaps between the state family violence and child protection system and the federal family law system, it is suggested that the most significant of these reports is that conducted by the ALRC in association with the NSWLRC (the ALRC Family Violence Report). This inquiry was prompted by questions raised in the Time for Action report,16 which was prepared by the National Council to Reduce Violence against Women and their Children and released in March 2009. The Time for Action report focused on the problem and extent of violence against women in Australia. It recommended that the ALRC should undertake an inquiry into the laws relating to family violence in Australia.17 In January 2009, KPMG prepared a projection of the costs of family violence and concluded that about 750,000 women ‘will experience and report violence in 2021–22, costing the Australian economy an estimated $15.6 billion’.18 Acting on the Time for Action report, the Federal Government requested the ALRC and NSWLRC to focus on two specific issues:

the interaction between a range of laws in relation to family violence and abuse, including the interaction between the Family Law Act 1975 (Cth) (FLA) and state and territory family violence and child protection laws; and ‘[i]nconsistency in the interpretation or application of laws; and a specific focus on sexual assaults committed by a person with whom the complainant is in a domestic or family relationship’.19 During the course of this inquiry, it became clear that there were other areas of law that violence and abuse impacted on and that a follow-up report dealing with federal legislation in areas such as social security law, immigration law, employment law and superannuation law was required. In February 2012, the second ALRC report, Family Violence and Commonwealth Laws: Improving Legal [page 102] Frameworks,20 was tabled in parliament. The Commonwealth Government also commissioned two studies into shared care.21 Although the recommendations in the second ALRC report were not adopted in their entirety, the findings of these studies contributed to providing a basis for the passing of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). This legislation has introduced significant reforms relating to violence and abuse. In addition to removing the socalled ‘friendly parent provision’ (which acted to discourage parents wishing to curtail contact with the other parent from raising their valid safety concerns) and provisions that allowed for the making of adverse costs orders for unproved allegations of violence (see further, 8.14), expanded definitions of family violence and child abuse have been introduced (see 3.3ff). The government response to the ALRC Family Violence Report was agreed to by the Standing Council on Law and Justice in April

2013.22 While this response deals specifically with matters of Commonwealth law, all of the Report’s recommendations are being considered and many have been acted upon: see further, 3.4.

New definitions of ‘family violence’ and ‘child abuse’ in the FLA 3.3 As indicated above, part of the reforms following on from the various reports was the introduction of new and broader definitions of family violence and child abuse into the FLA in 2012. To constitute family violence, it is no longer required that there be an objectively reasonable ‘fear and apprehension of violence’.23 The new definition of family violence, contained in s 4AB(1), is comprised of two arms. Family violence can be either ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family’ or violent threatening or other behaviour that ‘causes the family member to be fearful’. Subsection (2) provides examples of conduct that may fall within this definition, including assault, sexual assault, repeated derogatory taunts, intentionally causing death or injury to an animal, preventing a family member from making or keeping a [page 103] connection with their family, friends or culture,24 and unlawfully depriving a family member of his or her liberty. Evidence of conduct that falls within the examples given in subsection (2) does not in itself necessarily mean that the conduct will constitute violence within the FLA definition of family violence. In order to come within the definition, conduct must fall

within one or both of the arms contained in the actual definition provided in subsection (1). However, it would be unusual for conduct of the type contained in subsection (2) not to fall within the definition in subsection (1). Circumstances when a child is ‘exposed to family violence’ (as opposed to being the victim of the violence) are also included within the definition of ‘family violence’: s 4AB(3). Exposure to family violence is described as being when a ‘child sees or hears family violence or otherwise experiences the effects of family violence’. The definition furthermore provides examples of exposure, which include: overhearing threats of death or personal injury between family members; seeing or hearing an assault of a family member by another family member; comforting or providing assistance if a family member has been assaulted by another family member; and cleaning up a site after intentional damage to property and being present when ambulance or police officers attend an incident following an assault of a family member by another family member: s 4AB(4). When making parenting orders, exposure to family violence, abuse and neglect form an integral part of the decision-making process: ss 60B, 60CC, 60CG and 64D. See generally, Chapters 8 and 9. The definition of abuse in relation to a child has been expanded to include not only assault, sexual assault or sexual activity using the child as a sexual object, but also causing the child to suffer psychological harm or serious neglect: s 4(1). Thus some conduct, which prior to the reforms would not have been considered abuse, will now be regarded as abuse.25 However, these new criteria are problematic as it is often difficult to prove the relationship between emotional abuse and psychological harm. Furthermore,

in order to fall within the definition of abuse, neglect must be ‘serious’. This will require an assessment of whether the conduct in the circumstances before the court constitutes ‘serious neglect’. Neither ‘neglect’ nor ‘serious’ is defined in the Act. After noting this, in Robinson & Shannon26 Tree J said that the normal, dictionary, meaning of the word neglect should apply: ‘to be remiss in care for or treatment of’. [page 104] In 2015, the AIFS published a report27 evaluating the 2012 reforms to the FLA. In summary, and most relevantly to this chapter, the key findings from the report are as follows: Parents who use the family law system (and most do not) tend to be affected by complex issues including family violence, mental ill health, substance abuse and safety concerns for themselves and/or their children. There has been an increased emphasis on identifying families with concerns about family violence and child abuse; however, 29 per cent of parents using family law system services reported never being asked about family violence or safety concerns. Family law professionals indicated that better screening tools and approaches are required. Subtle changes in parenting arrangements are evident, such as more parents with safety concerns reporting a shift away from overnight stays with fathers. The proportion of children with court orders for shared care, where allegations of family violence or child safety had been raised, fell after the reforms (from 19 per cent to 11 per cent).

Recent developments

Family violence 3.4 In addition to amendments to the FLA, there have been further important and recent developments in the area of family violence, some of which are also a direct result of the various reports referred to above. However, another event has also been significant in raising public awareness and galvanising governments into increased action to combat family violence: the murder in 2014 of 11-year-old Luke Batty by his father (in circumstances where the parents were estranged). Luke’s family had been subjected to ongoing family violence by the father. Though the coroner concluded that no one could have reasonably foreseen Luke’s death, the case highlighted various process and systems gaps in the Victorian family violence system.28 This highprofile murder, and the subsequent activism of Luke’s mother, Rosie Batty (who was named the 2015 Australian of the Year), have been instrumental in motivating Australian governments to renew their efforts in tackling family violence. Indeed, the Chief Justice of the Family Court noted that 2015 ‘has seen a greater focus on the extent and effects of family violence on the members of the families [page 105] involved in particular, and the community in general. There has also been an increased interest in how the judicial system engages with victims of abuse both at a state and federal level.’29 It is not possible to cover in detail all that has been undertaken and proposed in the last few years; however, we have set out below a brief summary of the most recent and important developments. The ALRC Family Violence Report resulted in two important initiatives:

–

the development by the Commonwealth Attorney-General’s Department (in collaboration with Relationships Australia South Australia) of a multidisciplinary training package known as AVERT (Addressing Violence: Education, Resources, Training); this is aimed at encouraging collaboration between professionals working in the family law system, and developing a sound understanding about the nature, impact and appropriate response strategies relating to family violence;30 and – the development of DOORS (Detection of Overall Risk Screen), ‘an empirically based standardised front line screening framework … that assists separating parents and family law professionals to detect and respond to both wellbeing and safety risks’.31 In February 2015, the Victorian Government launched a Royal Commission into Family Violence, with an expected reporting date of 29 March 2016.32 The terms of reference are broad, covering both consideration of how to eradicate or reduce family violence (and indeed violence more generally); how to better protect and support victims of violence; and how to both hold accountable, and help change the behaviour of, perpetrators of violence. The Commission received nearly 1000 submissions and, at the time of writing, was compiling its report. In September 2014, the Queensland Government set up a Taskforce on Domestic and Family Violence in Queensland. The resultant report was released in February 2015 and contains 140 wide-ranging recommendations.33 A Domestic and Family Violence Implementation Council has been established to monitor the Report’s implementation and to champion the implementation of the Queensland Domestic and Family Violence Prevention Strategy.34 The Family Law Council has been asked by the Commonwealth Attorney-General to report on five terms of reference relating to harmonisation of service

[page 106] delivery in matters that cut across state care and protection systems, and the family law system. An interim report on the first two terms of reference was delivered in June 2015 and is ‘aimed at offering some workable preliminary solutions to the problems faced by families with multiple legal needs … and to enhance the capacity of the family law system and state and territory jurisdictions that deal with child protection and family violence to deliver integrated services to client families’.35 A final report is due mid-2016. Implementing a recommendation in the ALRC Family Violence Report, the Commonwealth Attorney-General announced (also in June 2015) that work had begun on a National Family Violence Bench Book, with the expectation that it would be ready by June 2017. This is intended to provide ‘a comprehensive online tool for judges across Australia, covering civil and criminal laws in federal, state and territory jurisdictions. It will promote best practice and consistency in judicial decision making in cases involving family violence’.36 The Council of Australian Governments (COAG) Advisory Panel on Reducing Violence Against Women and their Children (an initiative announced by then Prime Minister Abbott in May 2015) delivered its preliminary advice to COAG in July 2015.37 This highlighted the prevalence of family violence and the need to address the problem with both better service provision and education initiatives. In August 2015 the report of a Senate inquiry, Domestic Violence in Australia,38 was delivered. The Senate Finance and Public Administration References Committee had been asked to consider a range of things, including: the prevalence and impact of domestic violence, in particular for Indigenous women and women with a disability; factors contributing to levels of domestic violence; the adequacy of policy and community

responses; and how the Federal Government can support the necessary social, cultural and behavioural shifts required to eradicate violence against women and their children. As yet, there has been no formal government response to this report; however, the same committee has now been asked to report on domestic violence and gender inequality, with a reporting date of August 2016.39 [page 107] In response to the COAG Advisory Panel’s preliminary advice, in September 2015 Prime Minister Turnbull announced his first major policy initiative: a $100 million package of reforms designed to ‘provide a safety net for women and children at high risk of experiencing violence. The package will improve frontline support and services, leverage innovative technologies to keep women safe, and provide education resources to help change community attitudes to violence and abuse.’40 In December 2015, the COAG Advisory Panel released its second report,41 which made recommendations covering things such as: a model law framework to ensure women’s safety is not compromised when moving between jurisdictions; the development of public reporting and accountability frameworks for the National Outcome Standards for Perpetrator Interventions;42 and technology-assisted abuse of women and children.

Child abuse 3.5 Over recent decades, significant steps have been taken to tackle problems of child abuse. Legal reforms have been implemented, specialist services have been established, policies and procedures have been updated and protective behaviour programs have been introduced into schools. Nationally, a

number of bodies have been established, including the National Association for the Prevention of Child Abuse and Neglect Inc (NAPCAN), the object of which is to prevent child abuse by facilitating child-friendly communities. Also, in response to the recommendation of a report of the National Committee on Violence43 that prevention of child abuse be the responsibility of a national body (Recommendations 21 and 22), the National Child Protection Council (then the Australian Council for Children and Parenting) was established in 1991 and was mandated with the responsibility for overseeing child abuse prevention in Australia. The National Child Protection Clearinghouse — an information, advisory and research unit which focused on child abuse and related family violence — ran under the auspices of the Council. This, together with a number of other organisations, has morphed into the Child Family Community Australia Research Practice and Policy Information Exchange, which is now run under the auspices of the AIFS.44 [page 108] Other milestone events include, in 2009, the COAG endorsing a National Framework for Protecting Australia’s Children 2009–20, which provided the foundation for a national approach to protecting children from violence and abuse.45 A number of states and territories launched their own inquiries with a particular focus on child abuse. In 2010, the Northern Territory released a two-volume report, Growing Them Strong, Together: Promoting the Safety and Wellbeing of the Northern Territory’s Children.46 In 2008, the Wood Special Commission of Inquiry into Child Protection Services in NSW released its report,47 and the New South Wales Government has since acted on these recommendations through the 2009 Keep Them Safe: A Shared

Approach to Child Wellbeing reform agenda report.48 An outcomes evaluation of the implementation of Keep them Safe49 found mixed results, but expressed the view that it was too early for some of the objectives to be met. In 2010, the Victorian Law Reform Commission published a report resulting from its inquiry into protection applications in the Children’s Court, which focused on the reformation of court processes.50 In February 2012, the Report of the Protecting Victoria’s Vulnerable Children Inquiry (the Cummins Report)51 was tabled in parliament. This report into Victoria’s child protection system made 90 recommendations and the Victorian Government has undertaken to act on many of these, though there has been some concern at the level of implementation.52 In June 2013, the Queensland Child Protection Commission of Inquiry (the Carmody Inquiry) published its final report on its vision for an [page 109] overhauled child protection system in that state.53 The Queensland Government has essentially accepted the 121 recommendations in the report54 and implementation is under way.55

International instruments 3.6 Australia is a party to a number of international instruments relevant to violence and abuse against women and children. The International Covenant on Civil and Political Rights (ICCPR) (ratified by the Australian Government in 1980) contains a number of articles relevant to family violence. Article 23 provides that ‘[t]he family is the natural and fundamental group unit of

society and is entitled to protection by society and the State’. Article 17 also provides for protection of the family and Art 24 provides the child with a right to protection. In addition, Australia is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which came into force in 1991, as well as the Declaration on the Elimination of Violence against Women, which was adopted on 20 December 1993 to strengthen CEDAW. Through its ratification of the United Nations Convention on the Rights of the Child (CROC), Australia has undertaken obligations in relation to protecting the rights of children. These obligations have been strengthened with the 2011 Family Law Legislation Amendment (Family Violence and Other Measures) Act inserting an additional object (a new s 60B(4)) into Pt VII of the FLA to give effect to CROC. According to the Explanatory Memorandum, the purpose of introducing this object is: … to confirm, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Act, to the extent language permits, consistently with Australia’s obligations under the Convention.56

The Memorandum is clear that this section is of interpretive value only and its inclusion should not be regarded as incorporating CROC into domestic law.57 While confirming this position, the importance of CROC to judicial [page 110] decision-making can be seen, for example, in the decision of Bryant CJ (with whom Strickland J agreed) in Re Jamie.58 CROC contains a number of articles that are relevant to the issue of child protection. Article 9 states that children should generally not be separated from their parents against their will, but goes on to provide that ‘such determination may be necessary in a

particular case such as one involving abuse or neglect of the child by the parents’. A key provision in establishing the child’s right to protection from violence and abuse is Art 19: 1.

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has care of the child.

2.

Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Other relevant Articles include Art 34, which commits participating countries to protecting the child from all forms of sexual exploitation and abuse; Art 39, which deals with measures to promote physical and psychological recovery and social reintegration of a child victim of abuse; and Art 3(3), which deals with the rights of children who have been placed in care settings that are a substitute for natural parents. It has been argued that in view of the obligations that Australia has undertaken through its ratification of CROC, the Commonwealth has the primary responsibility for the prevention of child abuse.59 Fulfilment of this responsibility would involve developing a coordinated Commonwealth policy on child welfare, and facilitating cooperation among the states and territories and between agencies. To this end, it would also be desirable for greater uniformity to be achieved in state and territory child welfare legislation. The most recent step to bringing this goal to fruition was the appointment in early 2013 of a National Children’s Commissioner within the Australian Human Rights Commission. Commissioner Mitchell identified protection of children from violence as a priority in her first report at the end of that year. In launching

[page 111] her 2015 annual report60 Commissioner Mitchell noted the public debate sparked by the death of Luke Batty, saying: Given this national attention and commitment, I decided to use my report this year to highlight the unique experiences of children affected by family and domestic violence. This involved receiving submissions, collecting and analysing new data, reviewing the research and hosting a series of expert forums and individual consultations. The results are showcased in the Children’s Rights Report we are launching today. The report highlights new information about the incidence of and impact of family on children and sets out three main areas for concerted action by governments — in relation to data and research, early intervention and system reform. New data generated for this work shows that 1 in 12 men and women experienced physical abuse by a family member, and one in 28 experienced sexual abuse by a family member, before the age of 15. Available Victims of Crime data for some jurisdictions only further indicates that for the four year period to 2013, there were over 14,000 physical assaults and over 12,000 sexual assaults of children perpetrated by parents or other family members — mostly directed at younger children aged between 0 and nine years of age. For me these are shocking statistics that show just how many children are direct victims of violence in the home. Previous studies have also estimated that over 20% of children and young people have witnessed violence against a mother or step mother.61

The Report makes 16 recommendations62 focused on the three areas referred to above: data collection, early intervention and system reform. 3.7 Practically speaking, one of the greatest difficulties in addressing issues of violence and abuse at a national level stems from Australia’s federal structure: see Chapter 4. In Australia, legislative power is divided between the states and the Commonwealth. The Commonwealth Constitution confers on the Federal Parliament the power to legislate on specific topics. Residual powers that are not expressly or impliedly vested in the Commonwealth remain within the exclusive legislative domain of

the states. While legislative powers relating to parenting issues arising from parents separating lie firmly within the domain of [page 112] the Commonwealth, and hence the family courts’ jurisdiction, powers relating to child welfare and family violence orders fall within the legislative competence of the states and territories and hence the state and territory courts. Neither the Commonwealth nor the states and territories have complete legislative competence in this area, resulting in an overlapping, fragmented family law system. The bifurcation of the legislative powers in areas of family law has resulted in a family law system where: … there are gaps in, as well as between legal systems. Further, families may be involved in multiple proceedings in more than one court in order to deal with issues arising from separation and family violence.63

The problems arising from this jurisdictional arrangement are reiterated over and over again in the various reports referred to above. In the remainder of this chapter, we discuss the specific remedies available under federal and state or territory laws to protect adult and child victims from violence and abuse. The way violence and abuse are taken into account in parenting and property matters is discussed in the general context of those topics in Chapters 8, 9 and 14.

Injunctions Introduction 3.8 For married couples, an injunction under s 114(1) of the FLA is one remedy available to a victim who suffers violence from a

partner. Section 114(1)(a) specifically refers to ‘an injunction for the personal protection of a party to a marriage’. Parties who are living or have lived in a de facto relationship are unable to obtain an injunction for personal protection under the FLA as s 114(2)A is limited to a ‘de facto financial cause’. Such parties must thus rely on state/territory family violence legislation for personal protection. Where the partners are not married, similar provisions may be found in some state and territory domestic relationships legislation. For example, New South Wales allows a party to apply under its domestic relationships legislation for an order for personal protection.64 It has been held that in such cases, similar state/territory provisions should be construed in the same way as s 114 of the FLA.65 However, in such circumstances de facto parties may be better off relying on state/territory family violence legislation. [page 113] 3.9 The relevant statutory provision for a victim who is, or has been, married is s 114(1) of the FLA: (1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including: (a) an injunction for the personal protection of a party to the marriage; (b) an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specific area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides, situated; (c) an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage; … (f) an injunction relating to the use or occupancy of the matrimonial home.

Proceedings for an injunction under s 114(1) of the FLA must

involve circumstances arising out of the marital relationship: see para (e) of the definition of ‘matrimonial cause’ in s 4(1). Separation or divorce does not put an end to the existence of the power.66 Indeed, the breakdown of a relationship may well create the need for an injunction. As Chief Justice Nicholson has commented: The research … shows that violence is particularly likely to emerge or be exacerbated by marital separation, which puts an additional onus on all those who have contact with people who are experiencing marriage breakdown to be sensitive to their possible danger and fear … It must be recognised that those approaching the court … are particularly vulnerable to violence from their partners. Separation provides no protection and is no guarantee of physical safety; the fact that cohabitation has ceased may in fact precipitate a violent attack.67

3.10 While de facto couples cannot seek injunctions under the FLA for personal protection, s 114(2A) permits the making of injunctions and orders concerning the use, occupancy, and the right to enter onto, the parties’ residence(s). For married couples, s 114(3) of the FLA contains ancillary injunctive powers; these are mirrored in s 90SS(1)(k) and (5) for couples who are or were living in a de facto relationship. While the FLA does not provide for de facto couples to apply for an injunction for personal protection, s 68B of the FLA, in addition to providing [page 114] for an injunction for the personal protection of a child, allows the court to make orders or grant an injunction for the personal protection of: parents of a child; a person who has parental responsibility for a child; and persons with parenting orders directing where a child is to live, with whom the child is to spend time and with whom a child is to communicate. Such orders and injunctions are not dependent on the existence of a marriage or a de facto relationship: see 3.16–3.18 for further discussion.

To date, the FLA injunction has not proved popular where personal protection is concerned, with victims preferring to use a protection order under state or territory legislation. The principal reason for the injunction’s lack of popularity has been the expense and delay in obtaining injunctions and the difficulties with enforcing them.68 An application for an injunction must be made by the individual or legal representative (not the police) and proceedings may prove costly and protracted. The Family Court’s general philosophy has (in the past at least) been perceived as unsuited to the treatment of criminal conduct. However, it is worth noting that injunctions under the FLA, and for that matter state or territory family violence orders, cover a range of conduct that is not criminal, such as attendance at a particular place. 3.11 As to legislative reforms, the Family Law Amendment Act 1989 (Cth) strengthened the enforcement provisions of the Act, which are discussed at 3.19–3.20. Nevertheless, criticisms of the injunction’s effectiveness have continued.69 The injunction provisions of the FLA were not the subject of direct amendment by the Family Law Reform Act 1995 (Cth), the 2006 reforms or the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), in spite of the express recognition in the Explanatory Memorandum that the existing legislation ‘fails to adequately protect children and other family members from violence and child abuse’.70 However, the Family Court of Australia itself has in recent years demonstrated a heightened awareness of the pervasive influence of violence, and has declared that violence must be taken seriously by the court across a range of proceedings. The former Chief Justice of the Family Court provided strong personal leadership in breaking the perceived silence about violence and in indicating the responses that are required by the judiciary and profession alike;71 likewise, the current [page 115]

Chief Justice has been a vocal supporter of reforms in this regard, including the proper resourcing of the family courts to deal with the complex issues coming before them.72 In March 2004 the Family Court released a Family Violence Strategy.73 The final step in implementing that strategy was the adoption of Family Violence Best Practice Principles (the Best Practice Principles) in March 2009. The current edition of the Best Practice Principles (December 2015) recognises: the harmful effects of family violence and abuse on victims; the place accorded to the issue of family violence in the FLA; and the principles guiding the Magellan program for the disposition of cases involving allegations of sexual abuse or serious physical abuse of children (see 3.54).74 The Best Practice Principles are intended to provide decisionmakers with practical guidance when dealing with matters involving family violence and abuse. While this attitude on the part of the Family Court itself may lead to more effective interpretation of the injunction and enforcement provisions, there is no evidence as yet that victims are increasing their use of the injunctive remedies under the FLA. The Family Law Council and Family Law Section of the Law Council of Australia produced Best Practice Guidelines for Lawyers Doing Family Law Work in 2010 (these are currently under review). Part 9 of these guidelines deals with family violence and recognises family violence as a serious problem.75 3.12 The injunction is a discretionary remedy; the mere existence of the power to grant an injunction does not determine the exercise of the court’s discretion whether in fact to do so in all the circumstances of the case. We discuss some principles that the courts have developed for the exercise of discretion in the following sections.

3.13 The Family Law Reform Act 1995 (Cth) amended s 43 (general principles) of the FLA to include s 43(1)(ca): ‘the need to ensure safety from family violence’. This amendment had the potential, in the hands of a judiciary with heightened awareness of the need to act strongly and decisively against violence, to influence the future operation of both the substantive injunctions provisions and those provisions relating to enforcement. In the fifth edition of this book, published just after those amendments, it was noted that s 43 had been put to little substantive [page 116] use in the life of the Act. A hope was expressed that this new subparagraph would, in future, prove to be the exception to that generality. To date, this has not proved to be the case. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) has further amended this section so that it now reads ‘the need to ensure protection from family violence’, which promotes consistency in terminology throughout the legislation. It is not envisaged that this amendment will have any significant practical application.

The injunction as protection from violence and harassment 3.14 As has already been discussed, an injunction for protection pursuant to s 114 is not available to parties who are living or have lived in a de facto relationship: see 3.8. For married couples, the terminology of s 114(1) of the FLA is wide, and has been interpreted liberally by the Family Court of Australia. Note also that the specified powers are not exhaustive or exclusive; hence an injunction can restrain not only physical violence, but also harassment in the wider sense. ‘Personal protection’ (s 114(1)(a))

has been interpreted to include not only physical protection, but also protection of the right to lead one’s own life without interference.76 However, in spite of the broad application of this provision, the case of Oates & Crest77 highlights the limits of this injunctive power. In this case, the Full Court held that an injunction restraining the wife from coming within 100 m of the home of the husband’s girlfriend was beyond the power granted by s 114(1)(a). It was accepted that the husband’s application for an injunction arose out of the marital relationship and the mere fact that the premises were owned by a third party did not necessarily make the injunction beyond power. However, in this case another injunctive order had been made restraining the wife from communicating with the husband except through his lawyer and this would effectively restrain the wife from entering the girlfriend’s premises when the husband was there. The further injunction therefore only added the restraint of keeping the wife away from the premises when the husband was not there, and this was not an injunction for the personal protection of the husband. The girlfriend, it was noted, could utilise other state provisions if she wanted an injunction for her own benefit.

Injunctions excluding a party from the home 3.15 An injunction under s 114(1) of the FLA (see para (f)) can operate as an ouster order; that is, an order excluding one party from the home, even if he or she has a proprietary interest in the property. Since the referral of de facto financial matters to the Commonwealth, subs (2A) has been added to extend this jurisdiction to de facto couples. The power to issue injunctions under the statutory principles is wider than under equitable principles, and courts should consider the general [page 117]

purpose of the legislation when interpreting it.78 An injunction can be framed to restrict a party from approaching the other’s workplace or home: see s 114(1)(b) and (c). Furthermore, injunctions should be specifically worded; for example, ‘not to annoy’ is too vague.79 An injunction may restrain violence and at the same time regulate occupation of the home.80 As outlined above, the injunction is a discretionary remedy. The case law emphasises the width of the discretion conferred by s 114(1) (and now s 114(2A)); while it is not a trivial matter to exclude a person from his or her home, there is ‘no fixed list of criteria which must be established for the application to be successful’.81 Having said that, as pointed out by the Full Court in Davis & Davis,82 ‘[t]he matters which should be considered include the means and needs of the parties, the needs of the children, hardship to either party or to the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.’ Drawing on Davis, Alexander has summarised the Family Court’s approach in the reported authorities thus: When making an order excluding the violent person from access to property, the court must weigh up such factors as the means and needs of the respective parties, the needs of the children, the availability of alternative accommodation, the conduct of the party seeking the order, the proprietary rights of the parties and whether or not a less restrictive order would be sufficient. It must be necessary or reasonable to exclude the violent party. Precedent cases in this area merely provide guidelines for trial judges. They do not establish fixed criteria and there is a good measure of discretion vested in the judge. Most of the cases cited pre-date the 2006 and 2011 reforms to the Family Law Act 1975. Broadly, the court must assess whether it would not be reasonable or sensible or practicable to expect the family to continue to live together.83

In a case where the degree of violence poses a serious threat to family members, an injunction for exclusive use and occupation of the matrimonial home may be combined with terms restraining the other party from coming within a defined distance of that home.84

[page 118]

Injunctions for the protection of a child (and others) 3.16 A potentially significant remedy for the personal protection of a child who is the victim of child abuse is an injunction directed at restraining the perpetrator from interfering with the child. An injunction under this provision may prevail against the whole world.85 Such injunctive relief is most likely to be sought in circumstances where the adult parties have separated, and the child is no longer residing with the perpetrator of abuse. 3.17 Injunctions for the protection of children (and others) are available under the FLA. The current provision is s 68B, which was inserted by the Family Law Reform Act 1995 (Cth). Where proceedings are instituted in a court having jurisdiction under Pt VII of the FLA, the court can make such order or grant such injunction as it considers appropriate for the welfare of the child, including an injunction for the personal protection of the child (s 68B(1)(a)) or an injunction for the personal protection of a parent of the child, a person who has parental responsibility for the child, and any person with whom the child lives, spends time or communicates, under a parenting order: s 68B(1)(b). In view of the terms of s 68B(1)(b), there is potentially some overlap between the Family Court’s jurisdiction under this provision and injunctions for the protection of spouses available under s 114, which were discussed earlier in this chapter: see 3.10–3.15. The significant point to note is that under s 68B, the basis of the court’s jurisdiction is to grant ‘such injunction it considers appropriate for the welfare of the child’: s 68B(1) (emphasis added). In Department of Human Services v Brouker,86 Mushin J made an order restraining a 14-year-old girl from leaving Australia to enter into an arranged marriage with a man she had never met.

His Honour accepted the submission on behalf the Department that permitting the girl to be taken overseas for the purposes of marriage would be contrary to her welfare. Although the welfare of the child is clearly a relevant consideration in such proceedings, Pt VII makes it clear that this is an area where the paramountcy principle (best interests of the child as the paramount consideration) does not apply. In Flanagan v Handcock,87 the Full Court considered whether the best interest test applied to granting an injunction under s 68B. Kay and Holden JJ in separate judgments stated that if the paramountcy principle was not decisive, it was certainly influential. The approach taken under Pt VII is that the best interests of the child are to be treated as the paramount consideration only in those contexts where it is expressly stated to apply (see generally, Chapter 8) and [page 119] there is no such direction to the court in s 68B. This has now been confirmed in a number of Family Court decisions.88 Section 68B further provides that an injunction can be granted restraining a person from entering or remaining in a place of residence, employment or education (or other specified area that contains a place of this kind) of the child or other person referred to in s 68B(1)(b). Injunctions granted under s 68B may be granted unconditionally or on such terms and conditions as the court considers appropriate: s 68B(3). In circumstances where an injunction has been expressly granted for the personal protection of a person (note the terms of s 68C(2)), and a police officer believes, on reasonable grounds, that the person against whom the injunction is directed has breached the injunction by causing or threatening to cause bodily harm to the protected person or by harassing, molesting or stalking that person, the police officer may arrest that person without warrant: s 68C(1).

By virtue of s 68C(3), the provisions in s 114AA in Pt XIV of the Act (dealing with procedure on arrest, bringing the person before the court, and powers of custody in respect of persons arrested for breach of an injunction under s 114AA) apply to a person arrested under s 68B: see 3.19. Due to the Family Court’s expanded jurisdiction over children, this form of relief is available for the protection of any child, regardless of the marital status of the child’s parents. The only limit on the court’s jurisdiction stems from the terms of s 69ZK of the FLA, which precludes the Family Court from making an order in relation to the child who is under the care of a person under a child welfare law: see 3.47 for the extent of the court’s jurisdiction. 3.18 Legislation providing for protection orders (or ‘apprehended violence orders’ or ‘restraining orders’ as they are variously known) under state and territory legislation generally also extends to the protection of children.89 Thus, particularly where the parent of the child is pursuing relief for their own protection under state or territory legislation (a possibility discussed further at 3.21–3.22), this may be a preferred remedy also for the protection of any child at risk of abuse. The precise scope of the legislation varies between jurisdictions, but in all cases encompasses protection from physical violence. Note should be taken in this regard of the broad terms of the FLA provision which provides for an injunction for the ‘personal protection’ of a child: the term ‘personal protection’ is not defined in the legislation but has been widely defined by the Family Court: see 3.14 and Marriage of Kemsley90 cited there. [page 120]

Enforcement

3.19 Enforcement problems have been identified as a principal reason for the injunction’s ineffectiveness and consequent lack of use in protecting a victim from violence and harassment: see the discussion and references at 3.10–3.11.91 For many years, the remedies for breach were wholly inadequate; the Family Court had only a discretion to attach a power of arrest, and that discretion was in practice sparingly exercised. Now, s 114AA of the FLA provides for an automatic power of arrest on the breach of an injunction in certain circumstances. A police officer may arrest a person without warrant where the breach is constituted by conduct that causes or threatens to cause bodily harm to the person protected by the terms of the injunction, or where that person has been harassed, molested or stalked: s 114AA(1). Effective enforcement of injunctions therefore depends on police being aware of these provisions and their powers. It has been suggested that poor communication between the Family Court of Australia and the police forces of the states and territories has hampered enforcement in this regard,92 and that some police may not fully understand their role in enforcing injunctions.93 For the power of arrest to attach automatically, it is necessary for an injunction to specify that it is for the personal protection of a party or children.94 It should be noted that in many cases, police might focus on the state/territory family violence legislation (with which they are more familiar and which contains powers to arrest in a broader range of circumstances) rather than enforcing FLA injunctions. Parties themselves may be unaware of the power to arrest and therefore may not call police when an injunction is breached or not mention the existence of a FLA injunction. Section 68C provides similar powers of arrest in relation to injunctions granted under s 68B. 3.20 There are also sanctions for non-compliance with orders of the Family Court generally, and for contempt.95 These include imprisonment and fines.96 Nevertheless, the Family Court has been criticised for failing to impose penalties sufficient to operate

as an effective deterrent to breach of an injunction.97 Yet the Full Court of the Family Court has given a strong indication of its view that violent [page 121] breaches of orders and injunctions should attract serious penalties. In Marriage of Schwarzkopff,98 a husband was found guilty of 29 breaches of orders made under the FLA. He was eventually sentenced under s 112AD for contravention without reasonable excuse to two years’ imprisonment. The Full Court dismissed his appeal against sentence and commented thus: One of the fundamental purposes of a legal system in a civilised society is the protection of members of the community from acts of violence. Until recent times the criminal law, which makes acts of this kind an offence, was not properly enforced in cases where violence occurred within the family. Such violence was considered private in nature and beyond the reach of the law except in the most serious cases. However, in the last 20 years increasing attention has been focused on the prevalence of crimes of violence within the family and attitudes which tolerate family violence are now condemned by the law. … Personal relationships, especially within the family, are rightly protected by privacy, but that privacy must not be allowed to hide violence. Family violence is not a private matter and must be treated seriously by the courts, not only when prosecuted as a criminal offence in the ordinary way, but also where violence is an element of a breach of an order of the Family Court. We conclude that far from the sentence being excessive, it was appropriate to meet the circumstances of this case. The fact is that over a period of three months the husband subjected his wife to a campaign of terror and violence during which the wife was justified in feeling that her life was in serious danger. She faced this campaign of terror with considerable fortitude. She repeatedly sought the aid of the courts and the police to protect her as a citizen from this conduct. A number of the individual incidents were rightly described by the trial judge as ‘serious’ and ‘grave’. They included the events of 22 June which fell little short of rape. In the incident of 20 July the husband subjected the wife to a vicious and violent assault. Orders were made by a court under the Family Law Act on 28 March which should have made it clear to the husband that he was not entitled to pursue conduct of this type. On 5 May he was placed on a recognizance following breaches of those orders. Within days he returned to his former behaviour which escalated from that time. A particularly serious aspect is that it is clear that part of the

intention of the appellant over the latter period was to terrorise the wife into abandoning these court proceedings. The court has an obligation to the wife who seeks its protection. Society is entitled to expect that the court will meet conduct of this type in an appropriate way and the court has an obligation to itself to ensure that orders which it has made are complied with and that persistent, deliberate and serious breaches are dealt with in a firm and clear way.99

[page 122] In Marriage of Lindsey,100 the Full Court held that in proceedings in the Family Court under s 112AD, being contravention proceedings, the standard of proof to be applied is the civil standard of proof, since such proceedings are not a prosecution for an offence and s 140 of the Evidence Act 1995 (Cth) applies. The civil standard of proof (on the balance of probabilities) is, of course, much easier to satisfy than the criminal standard (beyond reasonable doubt). However, in Tate v Tate101 it was held that where contempt proceedings under s 112AP are brought, these are proceedings for an offence, and so the higher, criminal standard of proof applies. Each element of the offence must be proved beyond reasonable doubt.102

Protection orders under state and territory legislation 3.21 A protection order under state and territory legislation is the legal remedy most commonly invoked in practice by victims of violence. A protection order (alternatively referred to as an ‘apprehended violence order’ or a ‘restraining order’, depending on the jurisdiction) can be obtained quickly (either on application by an individual or the police) from a Magistrates’ Court, if the applicant satisfies the court on the balance of probabilities (civil standard) that the order is needed. An order can be framed to restrain a wide range of conduct, including harassment and

approaching in the vicinity of the applicant. Breach of the terms of a protection order is a criminal offence (although the original proceedings to obtain the order are not criminal in nature), and the police may arrest without warrant. Its appeal is therefore obvious.103 3.22 As in most areas of law outside the scope of Commonwealth legislative power, there is considerable variation in the details of the legislation in operation in the various parts of Australia. Most jurisdictions have legislation under which an order is obtainable by and against those within certain defined categories of relationship, such as spouses, de facto partners, those married according to Indigenous customary law, relatives or family members more generally, and those in intimate relationships. The definition and extent of the classes protected varies from statute to statute.104 Protection orders can be emergency, urgent, temporary, interim or final orders. They may be applied for ex parte or by consent, including by consent ‘without proof’ or ‘without admission’. When a protection order is made, various terms [page 123] and conditions may attach to the order; for example, prohibiting the respondent from being on the premises where the protected person lives or works. If a person contravenes or breaches a protection order, that person may be arrested without a warrant. Although the definition of ‘family violence’ or ‘domestic violence’ differs between the states and territories, protection orders may cover a variety of conduct that may or may not constitute a tort or a criminal offence. For example, the Victorian legislation covers behaviour that ‘torments, intimidates, harasses or is offensive to the other person’ and provides examples such as

‘threatening to disclose a person’s sexual orientation’ and ‘threatening to withhold a person’s medication’.105 The relevant statutes and the names of the protection orders in each jurisdiction are as follows. Jurisdiction

Statute

Order

Australian Capital Territory

Domestic Violence and Protection Orders Act 2008 (ACT)

Domestic violence order

New South Wales

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Apprehended domestic violence order

Northern Territory

Domestic and Family Violence Act 2007 (NT)

Domestic violence order

Queensland

Domestic and Family Violence Protection Act 2012 (Qld)

Protection order

South Australia

Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Intervention order

Tasmania

Family Violence Act 2004 (Tas)

Family violence order

Victoria

Family Violence Protection Act 2008 (Vic)

Family violence intervention order

Western Australia

Restraining Orders Act 1997 (WA)

Violence restraining order

In recent years, there has been continuing concern about the difficulties of protecting women and children from violence. Consequently, many jurisdictions have been fine-tuning, or even overhauling, legislation and implementing new [page 124]

processes to try to increase the protection afforded to victims. For example, New South Wales, Victoria and the Australian Capital Territory introduced new legislation in 2008, followed by South Australia in 2011 and Queensland in 2012;106 and in 2007, the Northern Territory increased penalties, introduced a presumption that applicant mothers with children in their care remain in the family home, allowed children to make applications on their own behalf and made it an offence (subject to there being a reasonable excuse) not to report reasonable suspicions of domestic violence.107 Further, New South Wales has piloted a Domestic Violence Intervention Court Model (DVICM), which shifts the onus away from victims laying complaints to police being obliged to arrest offenders and lay charges; Western Australia has introduced ‘on-the-spot’ police orders that assist police in providing immediate protection to victims of violence; and Victoria has introduced ‘safety notices’. The emerging feedback on these measures is mixed, with an evaluation of New South Wales’ DVICM showing limited evidence of success in court outcomes, no evidence of an upward trend in family violence reporting, and an increase in charge rates that was consistent with an overall increase in New South Wales.108 In a 2008 review of Tasmania’s domestic violence framework, 17 recommendations were made, all of which were accepted by the government.109

Relationship between Commonwealth and state or territory laws 3.23 A married person has the option of applying either for an injunction under the FLA or a protection order under state or territory laws. Pursuant to s 68B of the FLA, the family courts may grant an injunction to promote the welfare of the child. Such injunctions may relate to the personal protection of the child or

parent irrespective of whether the parents are married: see 3.16. As every student of constitutional law appreciates, where Commonwealth legislation covers the field, the operation of state law is normally precluded by virtue of s 109 of the Constitution. However, in the area of violence, the FLA exhibits a clear intention not to cover the field. Section 114AB(1) states that the remedies available under the Act are not intended to exclude or limit the operation of ‘prescribed’ laws of the states or territories which are capable of concurrent operation. The ‘prescribed’ laws are the protection order provisions outlined above. Moreover, s 114AB(2) [page 125] goes on to prohibit the institution of proceedings under the FLA once proceedings under state or territory law have been instituted by ‘a person … in respect of a matter’, but not vice versa. There is no bar on a person who has applied for an injunction under the FLA to subsequently apply for a protection order under the state or territory legislation. The effect is to make the state or territory legislation prevail once it is invoked. However, s 114AB does not prevent a person who has sought or obtained a protection order under state or territory legislation from seeking an injunction under the FLA in respect of matters not able to be dealt with under a protection order. This is because s 114AB(2) only prohibits applications for injunctions in respect of a ‘matter’ for which a protection order has been sought or obtained. There is also no formal prohibition against one party seeking an injunction under the FLA where a related party has already obtained an injunction under state or territory legislation. The constitutional validity of the state laws was confirmed in De Angelis v De Angelis,110 where the husband argued that the protection order provisions under the then relevant Victorian legislation111 were inconsistent with s 114 of the FLA, and therefore invalid. O’Bryan J held s 114 was not intended to cover

the field, nor was it inconsistent with the state legislation, as was evidenced by the very presence of s 114AB. We have observed on several occasions in the course of this chapter that the state/territory protection order is by far the more commonly invoked in practice. It does not seem, despite any expressed increase in sensitivity on the part of the Family Court of Australia, that this balance has been altered. According to Alexander, ‘[i]n most cases proceedings under the Family Law Act are a slower, more expensive and less effective remedy for women seeking protection in family violence cases’.112 Proceedings for an injunction under the FLA may still be pursued if proceedings for a protection order under state or territory law have been discontinued or dismissed, or if the protection order has been set aside or is no longer in force: s 114AB(2). 3.24 Following an agreement between state and territory Attorneys-General in 1992, a system of reciprocal enforcement of protection orders across state and territory boundaries was established by amendments to the then principal legislation. [page 126] Legislative steps have also been taken to ensure harmonisation between the terms of protection orders made under state and territory legislation, and parenting orders made under Pt VII of the FLA. The relevant provisions of the FLA are those contained in Div 11 of Pt VII. Section 68N states that the purpose of the Division is to resolve inconsistencies between family violence orders and orders that provide for a child to spend time with a person, and furthermore to ensure that such orders, injunctions or arrangements do not expose people to family violence: see also 8.111. The Family Court’s Best Practice Principles (see 3.11) provide considerable direction as to the matters judicial officers need to

consider when making parenting orders in situations where family violence is alleged. Protection orders and parenting orders may be directly or partially inconsistent. For example, a protection order may prohibit a person from coming within a specified distance of the other parent’s home, whereas the parenting order may direct that the child be collected and dropped off from that parent’s home. These orders are directly inconsistent. On the other hand, parenting orders may direct that the child spend time with a parent and protection orders may prohibit the parties communicating with one another, making compliance with the parenting order difficult due to them being partially inconsistent. The Family Court is required, to the extent that it is possible and consistent with the child’s best interests, to ensure that a parenting order is consistent with any family violence order and does not expose anyone to an unacceptable risk of family violence: s 60CG. See also 8.112. The relatively recently amended s 60CC(3)(k) directs the court, when assessing a child’s best interests, to have regard to any state or territory family violence order applying or that has applied to a child or a member of the child’s family (including an interim noncontested police issued order), and to give appropriate weight to the existence of such an order when making a parenting order: see 9.28ff. If a parenting order is made that is inconsistent with a family violence order, the reasons for so doing must be explained by the court, as must the purposes of the order and the obligations created by it, including the consequences of breaching the order: s 68P. Justice Nygh has commented that: Although failure to comply with these provisions does not invalidate the … order, the provision is clearly designed to discourage … [parenting] orders in conflict with a family violence order except in very special circumstances.113

The FLA permits parties to apply for a declaration that a protection order is inconsistent with a parenting order: s 68Q(2). If a protection order made under state or territory legislation is inconsistent with a parenting order made under the FLA, s 68Q(1)

provides that the parenting order will prevail over the protection order, thus potentially leaving a gap in protection. In practice, inconsistency is [page 127] often avoided with the state and territory orders providing for an exception to the protection order if communications or contact is authorised by a FLA order:114 see also 8.112 and 8.115. When a parenting order has been made under the FLA and a victim of family violence seeks a protection order, s 68R of the FLA gives the state and territory courts the power, when making or varying a protection order, to ‘revive, vary, discharge or suspend’ an existing parenting order dealing with the issue of with whom the child is to spend time. In other words, when making a protection order, the court can deal with ‘contact’ issues at the same time. As a parenting order will prevail over a state and territory protection order (s 68Q(1)), this section thus provides a mechanism for state and territory courts to amend a parenting order to avoid inconsistency between the state/territory and federal orders. These powers are limited to final family violence orders and cannot be used in proceedings for interim orders: s 68R(4). Furthermore, a court may only exercise its power under s 68R if it has material that was not before the court when the original parenting order was made: s 68R(3). In order to increase the awareness of the powers of the state and territory courts pursuant to s 68R, the ALRC Family Violence Report (see 3.2) recommended that all state and territory legislation be amended to specifically include an express reference to the powers under s 68R and that judicial officers should be required to consider these provisions.115 This has occurred in most jurisdictions.116 3.25

Another instance of inconsistency between federal and

state and territory legislation is the criteria for making parenting orders. Pursuant to the FLA, the best [page 128] interests of the child are the paramount consideration. However, when a state or territory court utilises s 68R to vary, discharge or suspend a parenting order, the state and territory courts must ‘be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed to family violence’: s 68R(5)(c). The authors of the ALRC Family Violence Report were of the opinion that the criteria for making the order should be the same irrespective of the court where the decision is made.117 Although some jurisdictions have provisions that give the safety, protection or wellbeing of children importance in decisions pertaining to protection orders,118 and many require that FLA orders must be taken into account in determining the terms and appropriateness of an intervention order,119 none mandate the paramount consideration to be the best interests of the child. See also 8.113–8.114. 3.26 The ALRC Family Violence Report recognised the benefits of empowering both the family courts and the children’s courts to make family violence protection orders. This issue emerges at the intersection of state and territory child protection law, state and territory family violence legislation and the FLA. The Report recommended that where the person seeking protection or the person against whom protection orders are sought is before the children’s courts, state and territory legislation should confer jurisdiction on the children’s courts to hear and determine applications for family violence protection orders in respect of that child, his or her siblings, other young persons in the same household and adults affected by the same circumstances: Recommendations 20-3 to 20-6. Furthermore, in order to enhance

the jurisdiction of the Family Court, the ALRC Family Violence Report recommended that an injunction for personal protection made pursuant to the FLA should mirror state and territory protection orders and that a breach of an injunction for personal protection should be regarded as a criminal offence: Recommendation 17-4; to date, this has not been implemented.

What constitutes child abuse? 3.27 Child abuse is an age-old, and persistent, problem. However, increasingly there is greater awareness of the issue. The accepted understanding of what constitutes abuse has also changed over time. While the term ‘child abuse’ was [page 129] originally used in the context of children who had been subjected to serious physical abuse,120 the need for a broader definition was widely acknowledged. The Royal Commission on Human Relationships in its 1978 report expressed the following views: 38. As a general principle, we believe that legal definitions of child abuse should focus on the child’s need for assessment and care, rather than any wilful desire on the part of the parents to inflict injury or to cause neglect. 39. Definitions should be broad enough to encompass all forms of abuse. At the same time, we recognise the dangers of subjective assessments of what constitutes abuse. Cultural and social values affect such assessments and what might be seen as neglect in one culture might be regarded quite differently in another.121

The Report also commented on the need to work towards greater uniformity of definition, noting that the failure to use common definitions contributes to our lack of knowledge about child abuse and makes statistical comparisons between

states/territories difficult. While there has been considerable progress towards developing a better understanding of what constitutes abuse since this report was released, there is still no single, uniformly accepted definition. The expanded definition in the FLA of abuse in relation to a child — which includes ‘assault, sexual abuse and exploitation, psychological harm and neglect’, and which was introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) — has already been discussed: see 3.3; but child abuse is defined in different ways in different contexts. There is, however, considerable commonality between the definitions in use: they all focus on the physical or psychological damage caused to the child by the abusive behaviour of others, and generally include physical, emotional and sexual abuse.122 Additionally, there is the category of child neglect, although historically there was some debate as to whether this constitutes a form of abuse or whether it should be dealt with in a category of its own.123 Child neglect is characterised by the failure to provide for the child’s basic needs: it differs from other forms of abuse in that it involves an act or omission by a caregiver that jeopardises or impairs the [page 130] child’s physical, intellectual or emotional development.124 It is generally accepted now that neglect is a category of child abuse.125 3.28 One of the difficulties in arriving at a universally acceptable definition of child abuse stems from the continuing disagreement as to whether certain behaviour constitutes abuse. One particular area of disagreement concerns the use of physical punishment in child rearing.126 At common law, there is authority for the proposition that ‘reasonable chastisement’ does not constitute an assault,127 and in some jurisdictions this exception to the general

law of assault is founded on statute law.128 While there may be considerable support for the view that mild-to-moderate physical correction of children for disciplinary purposes is, in some circumstances, acceptable,129 the difficulty lies in determining where the line should be drawn between acceptable and unacceptable behaviour. It is argued that this difficulty is exacerbated in the absence of clear legislative guidance.130 In addition, there continue to be calls for totally banning all forms of physical punishment in child rearing.131 Many other jurisdictions around the world have adopted ‘anti-smacking’ laws, beginning with Sweden in 1978. The research evidence is unclear as to the impact on children of physical punishment, and of course a range of factors come into play, not least the severity and regularity [page 131] of punishment. However, it does seem clear that there is no evidentiary basis for claiming positive outcomes for physically disciplining children.132 Also relevant in this regard is the United Nations Convention on the Rights of the Child (CROC: see 3.6), which contains a number of provisions directed at protecting children from abuse, including provisions on corporal punishment: Art 28(2). The United Nations Committee on the Rights of the Child has stated that any form of corporal punishment is in breach of CROC.133 As a result, model criminal provisions developed by the Model Criminal Code Officers Committee have been adopted in New South Wales. Under s 61AA of the Crimes Act 1900 (NSW), there is now only a limited defence (to assaulting a child) of ‘lawful correction’ available to parents, or persons acting for parents. The section specifically requires that the physical force was reasonable having regard to both the age, health, maturity or other characteristics of the child, and the nature of the alleged misbehaviour or other circumstance. Further, the force is not to be

applied to the child’s head or neck or in a manner that is likely to cause harm for more than a short period. The goal is that only mild punishment will be exonerated. Tasmania’s Law Reform Institute has also reviewed this issue,134 recommending alternative proposals to reduce the uncertainty as to what forms of punishment are legally permissible. As yet, there has been no amendment to s 50 of the Criminal Code Act 1924 (Tas), which simply permits ‘reasonable’ correction. 3.29 Another source of particular concern involves the practice of female genital mutilation common in some cultures (particularly African), which also occurs in Australia. While there is widespread disapproval of the practice,135 efforts to bring it [page 132] to an end have been met with criticisms of ‘western culture imperialism’.136 Despite these tensions, in 1995 the Standing Committee of Attorneys-General supported the nationwide abolition of this practice by adopting targeted model Criminal Code offences, both for performing female genital mutilation and for removing a child from the jurisdiction with the intention of obtaining the procedure elsewhere. All states and territories have now implemented these provisions.137 These laws apply extraterritorially so as to protect Australian residents from being subjected to this practice overseas. A governmental review of these laws was undertaken to assess the effectiveness of the regulatory framework, with a report delivered in March 2013.138 Three areas of inconsistency were identified (penalties, age coverage and extraterritorial coverage), with consequent recommendations being made. The government has undertaken to implement the recommendations. For example, New South Wales has since amended its legislation to increase the

maximum penalty for performing female genital mutilation to 21 years.139 Of more concern, perhaps, was the Report’s finding that very few prosecutions had been secured, though this was as much a result of a failure to detect as the inability to secure a prosecution. Indeed, some health professionals noted that the low numbers were not consistent with what they were seeing in the affected communities. A recent media report stated (based on information obtained through freedom of information legislation) that reports of female genital mutilation to the police are almost non-existent; and yet a survey indicated that 10 per cent of surveyed paediatricians had seen girls who were victims of this practice.140 The Report referred to moves in the UK to help identify girls at risk, by identifying mothers who have been subjected to the practice.141 [page 133] This form of female child abuse is of great concern across the globe, and it would seem that criminalisation is but a first step in addressing the problem. It is generally accepted that education of the affected communities is crucial to changing behaviour.

Incidence, causes and effects of child abuse 3.30 As many occurrences of child abuse go unreported or undetected, official figures do not reflect the true incidence of abuse. It is beyond dispute that child abuse continues to be a pervasive social problem. For the first time in 10 years, the 2009– 10 and 2010–11 national statistics indicated a decrease in reports of suspected child abuse. The decline was attributed to the

significant decrease in notifications in New South Wales as a result of changes to the Children and Young Persons (Care and Protection) Act 1998 (NSW), which included raising the threshold for reporting from ‘risk of harm’ to the new ‘risk of significant harm’. However, figures for the following three years show notifications again increasing from year to year; in the most recent figures (for 2013–14), there were 37.8 notifications per 1000 children, an increase of 11.4 per cent from the previous year. For that 2013–14 year, 54,438 allegations of child abuse were substantiated. In four jurisdictions, emotional abuse was the most commonly substantiated form of abuse, and in four other jurisdictions neglect was most common. Nineteen per cent of substantiations were of physical harm and 14 per cent were of sexual abuse. Girls were twice as likely to be the victims of substantiated sexual abuse, while boys were typically more likely to suffer from other forms of abuse than girls. Aboriginal and Torres Strait Islander children were seven times more likely to be the victims of substantiated abuse.142 The government spent around $3.3 billion in the 2013–14 year on child protection and out-of-home care services, and this figure is increasing at a rate of 4.6 per cent per year.143 3.31 There has been much investigation into the causes of child abuse.144 Child abuse occurs across all socio-economic, religious and ethnic groups. It is not possible to identify any single causative factor. Moreover, different types of child abuse have different features; for example, circumstances surrounding the sexual abuse of children may be quite different from those surrounding cases of neglect or physical abuse.145 A number of matters, relating to both the individual [page 134] characteristics of the abuser (and in some cases, also the abused

child) and environmental factors, have been identified as high-risk factors. These include parents’ low tolerance to stress, low selfesteem, poor parenting skills, ill health, and unrealistic expectations regarding the child or children. There is strong evidence to suggest that parents who have themselves been abused as children are more likely to become abusive parents. A link has also been found between child maltreatment and substance abuse. Additionally, marital conflict and instability are linked with an increased risk of abuse. High-risk factors in relation to children include age (younger children, below three or four years of age, are more likely to be subjected to abuse, with children under one year of age the most susceptible group), low birth weight, ill health and disability, and developmental or behavioural problems. Environmental factors contributing to the risk of abuse include social isolation, poverty, unemployment and changes in family structure. On the basis of figures taken from studies of substantiated cases of abuse, parents were responsible in the majority of cases, with a significant proportion of cases also occurring at the hands of step-parents, de facto parents, foster parents and guardians, as well as siblings and other relatives. In the case of sexual abuse, the abuse is perpetrated by a wider circle of people. While both mothers and fathers engage in other forms of abuse (though not necessarily at the same rate), in the case of sexual abuse, perpetrators are overwhelmingly male.146 As the above summary suggests, different factors may be operative in relation to child sexual abuse,147 though despite many theories being advanced in this regard, the complexity of the matter seems to defy any simple explanation. The family therapy perspective, also known as a family dysfunction model, suggests that incest assists in maintaining an equilibrium, such that each family member has an interest in its continuation.148 Though widely accepted in some quarters at times, this theory — which depicts mothers in these families as having failed either, or both, the father abuser and the abused child — has attracted severe criticism. According to the feminist theoretical perspective,

child sexual abuse is concerned with power and is seen as part of the range of violence perpetrated by [page 135] men against women and children.149 Finkelhor’s work on sexual abuse150 is also frequently referred to; however, this focuses more on the preconditions to abuse occurring (and risk factors), which arguably goes more to how the abuse occurs, rather than providing a clear explanation as to why. A strong link has been found between family violence (which can in its own right be seen as a form of indirect child abuse)151 and child physical abuse.152 Similarly, with regard to child sexual abuse, there is a growing body of evidence to indicate that this form of abuse often occurs in the context of physical violence and coercion within the family.153 As Beven concludes: Child maltreatment occurs because of a complex mix of social and economic pressures as well as societal and legal attitudes regarding the place and role of children in the community.154

3.32 Whatever the cause, the effects which are well documented are the same regardless.155 The physical effects may be extremely serious, with many children sustaining severe physical injury, and tragically, in some cases, dying.156 Child abuse can also result in hearing and speech impairments, and impediments to cognitive, social and emotional development. Quite apart from the physical injury inflicted, which may have lasting consequences, victims of physical abuse often suffer long-term psychological and social problems which potentially impact on the wider community. These include depression and adjustment problems, and the inability to form meaningful relationships. [page 136]

A history of child abuse has been associated with youth homelessness, juvenile offending, drug and alcohol abuse, youth suicide and adult crime. Due to the cyclical nature of abuse, persons who have been victims of child abuse are more likely to become abusive parents. Significantly, there is evidence to suggest that children who are not direct victims of abuse, but experience abuse more indirectly through witnessing violence in the home, may suffer similar problems to children who are direct victims of abuse. They are at significant risk of developing emotional and behavioural problems such as low self-esteem, depression and anxiety, passivity, self-destructive and aggressive behaviour, and poor school performance.157 They are also at greater risk of substance abuse, criminal conduct and homelessness.158 Research suggests that victims of child sexual abuse are likely to experience certain effects specific to that form of abuse. It is a complex picture however. After reviewing the relevant literature, Cashmore and Shackel concluded: Childhood sexual abuse is associated with a broad array of adverse consequences for survivors throughout their lifetime. As a result of more rigorous research studies in this field our understanding of the impacts of childhood sexual abuse is becoming more nuanced and a robust body of research evidence now clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences. To date, the strongest links have been found between child sexual abuse and the presence of depression, alcohol and substance abuse, eating disorders for women survivors, and anxiety-related disorders for male survivors. An increased risk of re-victimisation of survivors has also been demonstrated consistently for both men and women survivors. Some more recent research has also revealed a link between child sexual abuse and personality, psychotic and schizophrenic disorders, as well as a heightened risk for suicide ideation and suicidal behaviour.159

Protecting children from abuse under state and territory legislation 3.33

The issue of child abuse may come before the courts in a

variety of ways. The alleged perpetrator may face prosecution in criminal proceedings in the state/ [page 137] territory courts. However, practically speaking, prosecutions are rare and are usually only brought in the most serious cases of physical abuse or neglect. As commentators have long pointed out,160 criminal law remedies are often seen as inappropriate because to impose fines or a term of imprisonment may, in fact, exacerbate the problems and dislocation of the family: see also the Royal Commission on Human Relationships: Final Report,161 where it was stated that ‘criminal sanctions are a poor way of preventing child abuse’. Even at the time of that report in 1978 it was noted that there has been a swing away from a punitive stance to one of protection of the child at risk, together with help for the family involved, rather than punishment or imprisonment.162 With regard to child sexual abuse, the very nature of the offence results in major evidentiary difficulties, particularly where the child is very young. In the absence of a confession, it is extraordinarily difficult to secure a conviction. However, where there is sufficient evidence of child sexual abuse, criminal proceedings would most likely result, in view of the gravity of the offence. 3.34 Alongside the available criminal law sanctions, steps may be taken under state and territory child welfare legislation for the removal of the child from the care of one or both of the parents where that is necessary for the protection of the child. However, this is a measure of last resort: where possible, other options are explored that avoid the need for state/territory authorities taking the child into care, as this is recognised as creating its own problems.

The existing legislation in the states and territories is as follows: Children and Young People Act 2008 (ACT); Children and Young Persons (Care and Protection) Act 1998 (NSW); Care and Protection of Children Act 2007 (NT); Child Protection Act 1999 (Qld); Children’s Protection Act 1993 (SA); Children, Young Persons and their Families Act 1997 (Tas); Children, Youth and Families Act 2005 (Vic); and Children and Community Services Act 2004 (WA). While the processes contained in the legislation are broadly similar, there are significant differences in the way the different jurisdictions deal with and report child protection issues. 3.35 In cases where the parents separate, questions of where the child will live, and who may spend time with the child, are governed by the FLA and, if necessary, [page 138] are ultimately determined by the family courts. The issue of actual or alleged child sexual abuse in the context of contested child proceedings in the family courts is dealt with in Chapter 9. In some cases, the safety of the child or children can be sufficiently assured if the non-abusive parent separates from the perpetrator of abuse. From a family law perspective, it is important to note that when a child protection department is determining whether there is a risk of harm to a child, it deals with the ‘present’ only and does not necessarily delve into whether harm has occurred in the past or whether a change in living arrangements would raise these concerns,163 whereas these issues are relevant in family law matters. In the words of Higgins and Kaspiew:164

The mandate of child protection authorities is to intervene to protect children only when a parent is neither willing nor able to protect the child from harm. In contrast, the task of the federal law system that deals with parenting disputes is to resolve disputes between separated parents over what arrangements are in the best interests of their children.165

Mandatory reporting under state and territory laws 3.36 The term ‘mandatory reporting’ refers to the statutory obligation imposed on certain groups of people to report certain types of child abuse to the relevant authorities. While this is the expression that is now generally used, it should be noted that preference has been expressed from some quarters for use of the term ‘notification’ rather than ‘reporting’,166 and that terminology does occasionally appear in the literature.167 The objective of mandatory reporting is the early identification of child abuse so that the child can be treated for any injuries and protected from further abuse. However, there has been considerable debate as to the appropriateness of mandatory reporting.168 [page 139] 3.37 In spite of this, legislative provision has been made for mandatory reporting in all Australian jurisdictions, but there are some notable differences in the exact requirements, in terms of both the categories of persons who must report (and the state of mind required to activate the obligation to report) and the types of abuse that must be reported.169 In the last edition of this book, we summarised the various laws in the different jurisdictions as at that time.170 In general, the state of mind required is that the person reporting must suspect, or believe, on reasonable grounds that the child is being subjected to the reportable harm. The

reportable harm varies from only suspected sexual abuse to anything that will cause significant psychological, emotional or physical harm to the child. In some jurisdictions, the obligation to report applies to all persons; in many jurisdictions there is a list of occupations nominated, but those lists vary considerably, from the narrow to the very broad. The people most likely to be required to report are, not surprisingly, those most likely to acquire this information through their dealings with children: teachers, police, nurses and doctors. An overview of the different requirements in the various jurisdictions can be found in the Child Family Community Australia resource sheet Mandatory Reporting of Child Abuse and Neglect.171

Mandatory reporting under the FLA 3.38 Mandatory reporting requirements also exist under the FLA, applying to court personnel and other specified persons who become aware of abuse or ill-treatment in the course of carrying out their duties, performing their functions, or exercising powers under the Act: s 67ZA(1). Pursuant to s 67ZA(1) and (2) of the FLA, a member of the court personnel, a family consultant, counsellor, family dispute resolution practitioner, arbitrator, or a lawyer independently representing a child’s interests, must, if he or she ‘has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused … as soon as practicable, notify a prescribed child welfare authority [defined in s 4(1)] of his or her suspicion and the basis of the suspicion’. However, there is no obligation to notify if the person knows that the authority has been previously notified about the abuse or risk of [page 140] abuse: s 67ZA(4). Higgins and Kaspiew172 point out that while there is mandatory reporting under the FLA, resource limitations

of the child protection authorities restrain their ability to respond to all notifications. Furthermore, while allegations might be regarded as serious in the family law context, the state protection agencies may be unable to prioritise them over other notifications. 3.39 While the statutory obligation to report is limited to these serious forms of abuse defined in s 4(1), persons specified under the FLA have a discretion to notify a prescribed child welfare authority of other forms of abuse. Section 67ZA(3) states that: If the person has reasonable grounds for suspecting that a child: (a) has been ill treated, or is at risk of being ill treated; or (b) has been exposed or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child; the person may notify a prescribed child welfare authority of his or her suspicion and the basis for the suspicion.

The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) inserted a new note at the end of s 67ZA(3), the purpose of which is to clarify that where a person is authorised to report suspicions under s 67ZA(3) they are not excused from their mandatory reporting obligations under s 67ZA(2).173 In the event of a notification under s 67ZA (or under s 67Z(3), dealing with the Registry Manager’s duty to notify where a party has filed a notice alleging child abuse), the person may make such disclosures of other information as the person reasonably believes are necessary to enable the authority to properly manage the matter that is the subject of the notification: s 67ZA(6). Section 67ZB goes on to make it clear that the duty or discretion to disclose under s 67Z or s 67ZA exists, despite ‘any obligation of confidentiality imposed on the person by [the FLA], another Act, another law or anything else (including a contract or professional ethics)’. Importantly, persons making disclosure pursuant to the statutory obligation to notify are given immunity from liability in civil or criminal proceedings, and are not to be considered to have breached any professional ethics: s 67ZB(2). Similarly, where a

person, in the exercise of their discretion, makes notification under the Act of suspected ill-treatment or exposure to behaviour that psychologically harms the child, that person is immune from liability in civil or criminal proceedings as well as any breach of professional ethics, provided that the notification was made in good faith: s 67ZB(3). [page 141] 3.40 The relationship between s 67ZB and another provision of the FLA, then s 19N, was considered in Re W & W: Abuse Allegations; Expert Evidence.174 The latter section rendered inadmissible things said, or admissions made, to specified family counsellors and mediators in a meeting/conference when they were acting in that capacity. Allegations of sexual abuse had been made against the father by both the mother and a child. On appeal, the state welfare department sought to intervene and to tender into evidence an affidavit of a court counsellor. It was said that the father had made admissions of inappropriate sexual behaviour to the counsellor, but the child representative had not tendered this evidence, believing it inadmissible under s 19N. The department argued that s 67ZB(4) rendered the evidence admissible. It was held the evidence was inadmissible, and that the provisions of s 67ZB did not change this fact. This decision confirms that the intent here was to permit notification of abuse, not to make public the content of otherwise privileged communications. To overcome the effect of this decision, however, s 19N was amended in 2004,175 with the result that admissions by an adult that a child may have been physically or sexually abused (or was at risk of such abuse) and disclosures by children of such abuse were admissible, unless the court considered there was sufficient other evidence of the admission or disclosure. Section 19N was repealed in the 2006 amendments and replaced with s 10E (family

counsellors) and s 10J (dispute resolution practitioners), which are in similar terms: see 2.59ff. No such provision is required in the case of family consultants, as all communications with them are admissible: s 11C. 3.41 In conjunction with the introduction of the mandatory reporting provisions in 1991, amendments were made to the FLA with regard to rights of intervention in child abuse cases. Section 92A specifies that in proceedings where it has been alleged that a child has been abused or is at risk of being abused, certain persons are entitled to intervene, including a prescribed child welfare authority: s 92A(2)(d). Where such intervention occurs, the person is thereby taken to be a party to the proceedings, unless the court orders otherwise: s 92A(3). 3.42 Reference should also be made to s 91B (see 3.47–3.48), which enables the court, in any proceedings under the Act that affect or may affect the welfare of a child, to request the intervention in the proceedings of a child welfare officer from the relevant state or territory. Since the introduction of the 1991 amendments, protocols have been developed between the Family Court and the relevant welfare authorities to improve coordination and cooperation in the handling of child abuse matters. Clearly, investigation of allegations of abuse is beyond the legislative mandate of the Family Court, and the court therefore relies on the state and territory [page 142] agencies to undertake appropriate and timely investigations where allegations of abuse are made.176

State intervention for the protection of a child 3.43 In some circumstances, state intervention in the family is necessary in order to ensure adequate protection of a child. This may entail the removal of the child from the family in the face of parental opposition. Once the problem of child abuse has been identified, the case may progress in a number of ways: services to address the problem may be provided to the family by way of family therapy or counselling. Where there is cooperation from the perpetrator of the abuse, the child may be permitted to remain with their family, but subject to continuing supervision by the relevant department. In other cases, an agreement may be reached between the department and the family pursuant to which the child is placed in foster care or the abuser leaves the family home. Court applications for care and protection are usually only taken as a last resort.177 Some jurisdictions go further; for example, in New South Wales one of the ‘principles’ of intervention is that children will only be removed where it is necessary to protect the child from ‘the risk of serious harm’.178 In all Australian jurisdictions, care and protection applications are generally dealt with by the Children’s Court of the state or territory. The child welfare legislation in each of the jurisdictions makes provision for state intervention and removal of the child in certain circumstances.179 3.44 The legislation is generally framed on the basis that state intervention is justified if the child is in need of protection (or in some jurisdictions, if the child is ‘at risk’).180 Although there are differences in the specified grounds for [page 143]

intervention, by and large the provisions are drawn broadly so that any danger of significant harm, however caused, is covered (though in some jurisdictions ‘harm’ is not technically required to be ‘significant’). One important change to the provisions in New South Wales has the effect of requiring the Children’s Court to admit and consider evidence that a parent has previously had a child permanently removed from their care or has been named as involved in causing a reviewable death of a child. Such evidence now raises a rebuttable presumption that this is evidence of the child (who is the subject of the current care application) being in need of care and protection. The parent may rebut this presumption on the balance of probabilities: s 106A. The purpose of this provision is to overcome evidentiary obstacles that might arise with considering such evidence; this provision, rather than providing a separate basis for taking a child into care, simply ensures that the relevant evidence is considered and given the appropriate weight.181 There has been considerable concern in recent in years about the way care and protection proceedings are handled. This has resulted in various reviews of the legislation and systems in place in the different Australian jurisdictions. For example, at 3.5 we referred to the Cummins Report, a report on child protection that made 90 recommendations and suggested significant need for reform in the area of child protection.182 As a result of that report and the subsequent reviews that it generated, the Victorian legislation was amended in 2014 (with these amendments coming into effect in March 2016, to be reviewed within six months thereof),183 and there is a further amendment being considered.184 It is not possible in a book such as this to outline in detail all of the various care and protection provisions in the different jurisdictions, and so reference should be made to the relevant legislation for further details. There are a number of possible orders or dispositions available in the care and protection system, with some variations in law and

practice between jurisdictions. Possible orders include: supervision orders, where the child remains with their family under the supervision of the relevant state or territory department; orders [page 144] for the placement of the child with relatives or other appropriate people; and orders for guardianship (or parental responsibility) to the minister or department or (in some jurisdictions) to an individual. Children placed under the care of the minister or department have historically been referred to as ‘wards of the state’. The shift in terminology in the FLA away from the terms ‘custody’ and ‘guardianship’ has led gradually to corresponding changes in the terminology used in legislation governing care and protection. For example, the Western Australian and Northern Territory legislation refers to children being ‘in the CEO’s care’ (ie the care of the chief executive officer of the relevant department).185 In most jurisdictions, legislation is framed so as to ensure that a child is not removed from the care of their parents without appropriate justification. This approach is in accordance with Art 9 of CROC (see 3.6). In the majority of cases, children under care and protection orders who are removed from their families are placed in home-based care, either in a foster situation or with family or someone known to them.186 In most cases where a child has been removed from the care of their parents, the ultimate objective is to endeavour to work towards having the parents resume full responsibility for their child. Thus, alternative care arrangements are generally kept under review and, where possible, without compromising the safety of the child, efforts are made to reunite the child with their parents. Research data has shown that ‘most children who are placed in out-of-home care are eventually reunited with their families’.187

Child protection: the relationship between the Commonwealth and state and territory laws 3.45 The FLA and the state and territory legislation ‘both enable courts to make orders regulating and displacing parental responsibility for children’.188 The mere fact that parents separate does not automatically indicate that abuse and/or violence ceases; and as we have documented above, allegations of family violence are common in family court parenting disputes. It is therefore common for child [page 145] protection concerns to be raised in the context of parenting disputes. There is also a greater recognition of the link between child abuse and parental separation. When families separate, issues of child protection may arise in the Family Court in cases where it is alleged that a child will be exposed to a risk of sexual abuse or family violence when spending time with the other parent. In the context of allegations of sexual abuse of a child by a parent, and in order to determine whether a child should be permitted to spend time with such a person, the High Court developed the ‘unacceptable risk’ test in M & M:189 see 9.103ff, where this ‘test’ is discussed in detail. This test is invariably applied to cases where sexual abuse of a child is alleged, and though not always used in this context, is also commonly applied where family violence is claimed. In essence, the test mandates (somewhat self-evidently) that a parenting order should not be made where it would expose a child to an ‘unacceptable risk’ of abuse. As discussed at 9.103ff, determining the risk of abuse is not necessarily straightforward, particularly in

cases of alleged sexual abuse, because it may be difficult to establish whether the alleged past abuse occurred (and this is very often an important consideration in determining future risk). The task for the decision-maker becomes somewhat easier where the alleged past abuse is clearly established. Child protection issues may also arise where abuse takes the form of neglect and/or the general inability to parent.190 Such behaviour may have existed prior to separation and may have prevailed in conjunction with alleged sexual abuse and/ or family violence. One or both parties may be arguing that this history is relevant to post-separation arrangements. A third area where child protection issues may be relevant is where there is a dispute before the Family Court regarding living arrangements for a child, and the court is of the opinion that none of the parties before the court are suitable caregivers: see, for example, Secretary of the Department of Health & Human Services v Ray191 at 3.48. Likewise, where there is a parenting dispute between parties who are involved in proceedings in the Children’s Court, the limited jurisdiction of the Children’s Court means that parties may be obliged to initiate proceedings in the Family Court.192 To resolve the issue of proceedings in multiple jurisdictions, the ALRC Family Violence Report recommended that the FLA be amended to allow that in child protection proceedings, the Children’s Courts should have the same power as that given to the Magistrates’ Courts to make decisions in relation to children (Recommendation 19-4); however, this recommendation has not been implemented. 3.46 While child protection issues may arise during the course of a family law parenting dispute, child protection proceedings are brought under state [page 146]

and territory legislation in the Children’s Court to determine whether a child is in need of care and/or protection. As the Commonwealth Parliament does not have legislative power in respect of child protection issues, the making of orders under child welfare legislation has the effect of limiting the Family Court’s jurisdiction. The ALRC Family Violence Report identified two gaps in the relationship between the family law courts and the child protection agencies that may put children — and, for that matter, adults — at risk.193 The first gap is what the Report termed an ‘investigatory gap’, which arises because the family courts lack mechanisms to conduct independent investigations into allegations of family violence and abuse that arise in parenting disputes. The family courts are reliant on the parties, independent children’s lawyers, family consultants and importantly state and territory child protection authorities to provide them with the necessary information to make decisions regarding children who are at risk. In this context, the Report recommended that the provision of investigatory and reporting services to the family courts be strengthened by creating mechanisms for the child protection services to provide these services: Recommendation 191. The ALRC Family Violence Report also recommended that the state and territory protection agencies develop protocols for dealing with requests for documents and information under the FLA and for responding to subpoenas issued by the family courts: Recommendation 30-5. The second gap is a ‘jurisdictional gap’ that occurs when the family courts are faced with allegations of violence and abuse, and consider that none of the parties to the parenting dispute is a viable or protective carer. The court may consider that an order should be made granting parental responsibility to the child protection authority. However, the family courts do not have the statutory power to make such an order.194 Conversely, proceedings may commence in the Children’s Court but then be referred to the Family Court. This may occur when the child protection agency identifies a viable carer, and advises the carer to apply to the

Family Court for a parenting order. The gap arises when the orders envisaged by the agency are not made in the Family Court because the carer failed to commence proceedings in the Family Court, or because the applicant was not able to provide sufficient evidence of violence.195 The ALRC Family Violence Report recommended that the child protection agencies should provide greater support for Family Court litigants with child protection concerns: Recommendation 19-3. [page 147] Shortly after the release of the ALRC Family Violence Report, the National Justice Chief Executive Officers’ Group (the NJCEO) approved a plan to develop national initiatives with the goal of improving collaboration between federal family courts and child welfare authorities. Considerable work has resulted from this initiative. The Commonwealth Attorney-General’s Department released an Options Paper in December 2011, Improving the Interface between the Child Protection Systems and the Family Law System. The 15 recommendations from this paper did not require any legislative amendment. One recommendation related to the creation of a national best practice framework for information sharing between the federal family courts and the child welfare authorities, and this was taken a step further through consideration of the issue in a report by Professor Chisholm delivered in March 2013: Information-sharing in Family Law and Child Protection: Enhancing Collaboration.196 This report made recommendations that could be implemented within the current legislative-framework, but also recommended legislative change that would both remove barriers to, and positively encourage, information-sharing. Following on from that report, in March 2014 Prof Chisholm delivered a further, related, report, The Sharing of Experts’ Reports between the Child Protection System and the Family

Law System,197 and a number of state/territory-based initiatives have been developed to improve collaboration.198 3.47 Section 69ZK of the FLA generally precludes the Family Court from making an order in relation to a child who is under the care of a person under a child welfare law as defined in the FLA: s 4. There are exceptions to this rule: where at the time the order is expressed to come into effect the child ceases to be under that care, or where a child welfare officer of the relevant state or territory has given written consent for the institution or continuation of those proceedings: see s 69ZK(1)(a) and (b). Just because in many cases the court could make a parenting order designed to take effect when the care and protection order ends, this does not mean that the court must consider any such application in detail. A judge is entitled to take the view that it is not appropriate at the time to consider the making of a future order and dismiss the parenting application on the basis of the existing care and protection order.199 In the absence of orders under child welfare legislation, and where proceedings are pending in the Family Court, the court may request the intervention of a child welfare officer: s 91B.200 Where such intervention occurs, the officer becomes a party to the proceedings: s 91B(2)(b). However, such intervention does not prevent [page 148] state or territory welfare authorities from obtaining an order under child welfare legislation, thereby ousting the jurisdiction of the Family Court.201 3.48 In Secretary of the Department of Health & Human Services v Ray,202 the Full Court of the Family Court (Bryant CJ, Finn and Ryan JJ) confirmed that the Secretary of the Child Welfare

Department cannot be compelled to intervene in family law proceedings. Furthermore, the jurisdiction of the family courts extends only to those with parental responsibility or those willing to accept it. Thus while a parenting order may be made in favour of the secretary of the child welfare department, it can only be done with their consent. The case concerned two children, aged 15 and nine. There was some suggestion that these children may have been at risk of abuse and harm. Benjamin J at first instance was concerned that none of the parties was a suitable candidate for parental responsibility and made a request pursuant to s 91B of the FLA that the Secretary intervene in proceedings. The Secretary did not wish to intervene in proceedings and refused to consent to an order for parental responsibility. After hearing argument, Benjamin J ordered that the Secretary be joined as a party to the proceedings. The Secretary appealed this decision and the appeal was upheld. The Full Court confirmed that, without the Secretary’s consent, such an order could not be made. While acknowledging the dilemma that confronted Benjamin J, the members of the Full Court were adamant that ‘it is not for a federal court to instruct the Secretary as how he should prioritise the use of his resources or exercise his State powers’.203 The Full Court acknowledged ‘the need for continuing attempts to harmonise in some way the administration of State and Federal laws concerning the welfare of children’.204 3.49 One possible option for resolving the fragmentation issue, which has been canvassed for some time, is for the jurisdiction over care and protection of children to be transferred from the state and territory Children’s Courts to the Family Court of Australia.205 Thus, in place of the existing situation, where the Family Court is precluded from making orders in respect of children who come within child welfare legislation (s 69ZK), the Family Court would have exclusive jurisdiction in respect of care and protection matters. Various factors have been advanced in

support of this proposal, including the status of the Family Court as a specialist court dealing with children’s issues and the already wide-ranging juridiction of [page 149] the court, encompassing also welfare and parens patriae jurisdictions, which are consistent with state and territory care and protection jurisdictions. While such a proposal may have considerable merit in principle, it may, in practice, be difficult to achieve as it would depend on the referral by the states to the Commonwealth of their powers in respect of child welfare matters. Referral of powers by the states in the area of family law has been achieved in the past with the major referral of powers in respect of ex-nuptial children (pursuant to which child welfare matters were notably excluded) and, more recently, de facto relationships, but in neither instance was it an easy process, and in fact on both occasions not all states participated in the original referral of power: for discussion of referral of power, see 4.89–4.92. 3.50 There has also been an increasing focus on the problems experienced by children interacting with both state/territory welfare jurisdictions and the family courts.206 The obvious issue is that the same families may be involved in more than one jurisdiction. The Family Law Council has previously supported amendments that would enable the court before which a matter arises to deal with all related parenting disputes together with child welfare/protection issues, thus avoiding duplicated proceedings and conflicting decisions.207 However, the specific recommendations in that report met with some opposition208 and relied to some extent on cross-vesting, which has since proved to be a very limited option. In 1997, the ALRC addressed the issue as part of its review of children in the legal process,209 saying:

The lack of co-ordination between the family law and care and protection jurisdictions and between the care and protection systems of each State and Territory was raised as a source of serious concern during the Inquiry. There was wide agreement that the current jurisdictional arrangements fail to serve the interests of many children in the family law and care and protection systems and may add to their disadvantage and distress.210

3.51 The Family Law Council revisited the issue in 2002 when it published its report on Family Law and Child Protection,211 which recommended that the Federal [page 150] Government establish a national child protection service: Recommendations 1 and 2. It noted that cases involving child abuse are the core business of the Family Court, but that state and territory authorities often do not investigate these cases as the Family Court is seen to be in a position to safeguard the child through the making of appropriate parenting orders. However, once in the Family Court, there is no independent investigation of any abuse allegation. The Council recommended that a national Child Protection Service be established with the objectives of investigating child courts, avoiding systems abuse and duplication of decision-making, and promoting cooperation between state and federal agencies: Recommendation 3. In December 2003, the House Standing Committee on Family and Community Affairs delivered its report on child custody arrangements212 and noted the Council’s recommendations, but preferred increased resourcing of services and nationally consistent child protection laws. However, it agreed that a ‘one-court’ principle should be investigated; that is, that separating families should be able to resolve all issues in one court.213 This led to the announcement by the present federal government of a ‘national child protection framework’ which will be fast-tracked, with the goal of improving information sharing and detection of child abuse. In its 2009 report Improving Responses to Family Violence in the

Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, the Family Law Council recommended (Recommendation 7) that there be a: … referral of powers to Federal Family Courts so that in determining a parenting application, these family courts have concurrent jurisdiction with the State Courts to deal with all matters in relation to children.

Further, the ALRC Family Violence Report specifically recommended that there be a limited reference of powers to enable the courts to make orders giving parental rights and duties to a child protection agency where there is no other viable and protective carer for a child. This report also recommended that the family courts have the power to join a child protection agency as a party in this limited class of cases: Recommendation 19-2.214 3.52 While s 69ZK of the FLA sets express limits on the jurisdiction of the family courts where a child is under state care and protection, in circumstances falling outside those express limits the question has arisen as to whether the family courts may, in the course of contested child proceedings, require the disclosure of information held by the relevant state or territory welfare department, [page 151] notwithstanding the confidentiality provisions contained in state or territory care and protection legislation. In child-related proceedings, s 69ZW allows the family courts to make an order requiring a state or territory agency to provide the court with documents and information relating to notifications of suspected abuse of a child or suspected family violence relating to a child. In Re Z (No 2),215 a majority of the Full Court (on a case stated) held, among other things, that s 97(3) of the Community Welfare Act 1983 (NT), the provision which at that time dealt with the confidentiality of information,216 was inconsistent with the best

interests of the child principle contained in the FLA and was therefore inoperative to the extent of the inconsistency. Their Honours held that although it was important for child protection systems to maintain confidentiality, the protection was not absolute and the Family Court should not be precluded from obtaining information held by child welfare authorities in appropriate cases, as to do so would operate as a significant inhibition on the discharge of the court’s statutory functions in cases involving allegations of child abuse or ill-treatment. The Northern Territory Government, which had intervened in the Full Court hearing, appealed this decision to the High Court: Northern Territory v GPAO.217 A majority of the High Court (Kirby J dissenting) overturned the Full Court’s decision, finding there to be no inconsistency between s 65E (now s 60CA) and the territory law protecting confidentiality. Gaudron J said: It is correct to say that the ‘paramountcy principle’ … permeates the whole of Part VII of the Act. But, so far as concerns s 65E of the Act, its significance is, in terms, confined to ‘deciding whether to make a particular parenting order’. It does not apply to the conduct of proceedings for the making of such an order or the procedures to be observed in relation to those proceedings. The question whether a person who is not a party to proceedings is or may be made subject to the court’s powers to compel the production of documents is, essentially, a question of procedure. And on that issue, s 65E of the Act has nothing to say.218

For further discussion of the case, see 8.66. 3.53 The 2011 reforms to the FLA inserted a number of amendments regarding the obligations to provide the Family Court with information regarding the risk of abuse to a child. The obligations are stricter for those who are parties to the proceedings than those who are not. Parties to the proceedings are obliged to notify the court if a child who is the subject of the proceedings, or a member of the child’s family, is under the care of a person under a child welfare law: s 60CH. This provision operates subject to s 69ZK. Likewise, parties to the proceedings [page 152]

are obliged to disclose to the court whether the child, or another child who is a member of the child’s family, has been the subject of a notification or report to a child welfare authority or an investigation, inquiry or assessment by a child welfare authority: s 60CI. Under both sections, people who are not parties to the proceedings may provide such information to the court, but are not obliged to do so. A failure to provide the court with this information will not affect the validity of such orders. These sections were introduced to provide information to assist the Family Court in making decisions regarding children who are under a care order, or the subject of investigation or assessment by a child welfare authority.219

Other strategies 3.54 Cases where child abuse is alleged present particular problems for the Family Court, not least of which is the danger that the child will suffer further trauma as a consequence of the legal proceedings. It has been known since the late 1990s that child abuse is core business of the Family Court and the court has not necessarily dealt with the issue well.220 In particular, the adversarial nature of the court system has been highlighted as being poorly suited to the complexities of these cases, resulting in lengthy proceedings that further traumatised the children, were very costly, and commonly had inconclusive results.221 Difficulties have also arisen from problems managing the various organisations typically involved in abuse cases. In response, the Family Court developed and trialled a special program for managing parenting disputes where child abuse is alleged, called Project Magellan. Project Magellan was first run in Victoria, in the Melbourne and Dandenong Registries of the Family Court, in 1998 and 2000. Residence and contact disputes

involving allegations of serious sexual or physical child abuse were selected for the trial. Key features of the Magellan management process included: (a) a child-focused approach with state-funded child representation in all cases; (b) tight judicial management, with four clear stages and a fixedtime program; and (c) a multidisciplinary approach, with close liaison between the court and outside services.222 [page 153] The final stage of the project was its evaluation, which provided very positive results: levels of child distress were reduced; parent satisfaction was generally higher, with a ‘feeling of being heard’ consistently expressed; dispute resolution time was faster; fewer cases proceeded to a final trial; there was a greater finality of orders/outcomes; and the average cost per case decreased.223 Following this success, Magellan was implemented nationally. A further review has concluded that, while there is room for improvement, overall, Magellan provides a successful case management process for these cases.224 Section 67ZBB (which substantially replaces s 60K) complements the operation of Magellan, by helping to identify the relevant cases. Given the expanded definitions of family violence and abuse now found in the FLA, it has been suggested that the Magellan

program ought to be expanded to cover a broader range of cases.225 It is also notable that while Magellan has been reviewed from a case management point of view, there has been no evaluation of outcomes on children who cases are managed via the Magellan program. Section 67Z provides that where an interested person alleges that a child to whom the proceedings relate has been abused or is at risk of abuse, a notice must be filed in the prescribed form. Similarly, s 67ZBA provides that where allegations of family violence or the risk of family violence are relevant to the making of a parenting order, an interested person must file a notice in the prescribed form. When a notice is filed alleging abuse or the risk of abuse of a child, or family violence or the risk of such violence (ss 67Z(2) and 67ZBA(2)), s 67ZBB places an obligation on the court to take ‘prompt action’ in relation to the allegations of child abuse or family violence and to ensure that the matter is dealt with as expeditiously as possible.226 To this end, the court must, as soon as practicable and [page 154] preferably within eight weeks after the notice is filed, consider what interim orders should be made to obtain the required evidence and to protect the child or any of the parties to the proceedings. The kind of orders that the court may consider making are an order for the appointment of an independent children’s lawyer, an order to obtain documents or information from a state or territory agency (s 69ZW), or an injunction under s 68B. Western Australia, which has its own state family court, has adopted its own solution to this particular issue. In 2001, the Family Court of Western Australia implemented a trial program

called the Columbus Pilot. Recognising that even where a child is not directly involved, domestic violence is a form of child abuse, Columbus targeted not only cases involving allegations of direct child abuse, but also those where there was family violence that was a risk to children.227 Columbus opted for an interdisciplinary management system, placing a Family Court counsellor alongside a registrar to jointly manage the selected cases. The process involved a series of case conferences but, unlike Project Magellan, there was no predetermined number. While cases were still tightly managed to reduce the length of the overall process, the aim was not just to resolve immediate issues, but also to address underlying issues, with the goal of achieving ‘durable, safe outcomes for parents and their children’.228 Children were given legal representation and conference proceedings were privileged. The results of Columbus were also highly successful, with children, parents and legal representatives reporting high levels of satisfaction.229 This pilot has led to the implementation in July 2004 of a Case Assessment Conference Model. Now, in all but the most urgent parenting cases, the first court event is a preliminary conference run by a family consultant. The aim of this conference is to provide an early intervention in parenting disputes so that the management of the particular case can be considered, any risk of abuse assessed and opportunities for resolution by agreement explored. All cases then proceed to a case assessment hearing (before a magistrate or judge, as the case may be), which is a procedural hearing that may progress the matter, provide the opportunity for consent orders to be made, and so on. Where a risk of abuse is [page 155] identified, the matter will be case-managed by a judge (the ‘judge track’) in a way similar to the Columbus Pilot.230

3.55 It is often said that a society can be judged by how it treats its children. It is clear there remains much to be done; as a society we need to ensure that we are doing all that we can to protect our young and support the families in which they grow up. Legislative change is but one part of the puzzle; much depends on how ‘the system’ operates in practice. Perhaps the greatest legal challenge remains the jurisdictional problems arising from having so many ‘systems’ in place in Australia. However, legal responses alone are not sufficient to combat the widespread and insidious phenomenon of violence within families; violence is a pervasive problem and until there is a cultural shift away from violence more generally, it is hard to see how dramatic improvements will be achieved. 1.

See H Rhoades, C Frew and S Swain, ‘Recognition of Violence in the Australian Family Law System: A Long Journey’ (2010) 24 Australian Journal of Family Law 296 for a historical overview of the responses of the Australian federal family law system to family violence.

2.

D Higgins and R Kaspiew, ‘Child Protection and Family Law … Joining the Dots’ (2011) National Child Protection Clearinghouse Issues 34, available at https://aifs.gov.au (accessed 6 March 2016). I Wolcott and J Hughes, Towards Understanding the Reasons for Divorce, Working Paper No 20, AIFC, 1999, p 8.

3. 4. 5. 6.

7.

G Sheehan and B Smyth, ‘Spousal Violence and Post Separation Financial Outcomes’ (2000) 14(2) Australian Journal of Family Law 102. L Moloney et al, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings, Research Report No 15, AIFC, 2007, [5.2.1]. T Brown et al, Violence in Families Report Number One: The Management of Child Abuse Allegations in Custody and Access Disputes Before the Family Court of Australia, Family Violence and Family Court Research Program, Department of Social Work, Monash University, Clayton and Department of Social Work, Australian Catholic University, Canberra, 1998; T Brown et al, Resolving Family Violence to Children: The Evaluation of Project Magellan, a Pilot Project for Managing Family Court Residence and Contact Disputes Where Allegations of Child Abuse Have Been Made, Report No 3, Family Violence and Family Court Research Program, Monash University, 2001. J Dewar and S Parker, Parenting Planning and Partnership: The Impact of the New Part VII of the Family Law Act of 1975, Working Paper No 3, Family Law Research Unit, Griffith University, 1999; H Rhoades et al, The Family Law Reform Act, 1995: The First Three Years, University of Sydney and Family Court of Australia, 2000; R Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112.

8.

B Fehlberg et al, Australian Family Law: The Contemporary Context, 2nd ed, Oxford University Press, South Melbourne, 2015, p 148 and see the references cited therein.

9.

C Banks et al, ‘Review of the Exposure Draft of Family Law Amendment (Shared Parental Responsibility) Bill 2005’ (2005) 19 Australian Journal of Family Law 79. K Wilcox, ‘Connecting Systems, Protecting Victims: Towards Vertical Coordination of Australia’s Response to Domestic and Family Violence’ (2010) 33 University of New South Wales Law Journal 1013 at 1022.

10.

11. 12. 13.

14. 15.

16.

R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS and the Australian Government, Commonwealth of Australia, 2009. Ibid, p 26. Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, Family Violence Committee, Family Law Council, Attorney-General’s Department, Commonwealth of Australia, 2009. R Chisholm, Family Courts Violence Review: A Report by Professor Richard Chisholm AM, Commonwealth of Australia, 2009. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response: Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010. National Council to Reduce Violence against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children 2009–21, 2009.

17. 18.

Ibid, p 120. Ibid, p v; KPMG, The Cost of Violence against Women and their Children, 2009, prepared for the National Council.

19.

ALRC and NSWLRC, Family Violence: Improving Legal Frameworks, Consultation Paper Summary, ALRC CPS 1/NSWLRC CPS 9, Commonwealth of Australia, 2010, p 3. ALRC, Family Violence and Commonwealth Laws: Improving Legal Frameworks, Report No 117, Commonwealth of Australia, February 2012.

20. 21.

22.

I Katz et al, Shared Care Parenting Arrangements Since the 2006 Family Law Reforms, Social Policy Research Centre, University of New South Wales, Commonwealth of Australia, 2010; J McIntosh et al, Post Separation Parenting Arrangements and Developmental Outcomes for Infants and Children: Collected Reports, Family Transitions, 2010. Available at www.ag.gov.au/inquiries/family-violence/implementation (accessed 15 February 2016).

23. 24.

For a discussion of this requirement, see Nawaqaliva & Marshall (2006) FLC ¶93-296. The term ‘family member’ in s 4AB includes the child who is the subject of the proceedings: Bant & Clayton [2015] FamCAFC 222.

25. 26.

See, for example, Faden & Faden [2014] FamCA 1182. [2015] FamCA 1124 at [34].

27.

R Kaspiew et al, Evaluation of the 2012 Family Violence Amendments: Synthesis Report, AIFS, October 2015, https://aifs.gov.au/publications/evaluation-2012-family-violen-

28. 29. 30. 31.

ce-amendments (accessed 15 February 2016). The findings from the Inquest into the Death of Luke Geoffrey Batty are available at www.coronerscourt.vic.gov.au (accessed 15 February 2016). Family Court Bulletin, Issue 17, December 2015, available at www.familycourt.gov.au (accessed 15 February 2016). For further details, see www.avertfamilyviolence.com.au (accessed 15 February 2016). See www.familylawdoors.com.au (accessed 15 February 2016).

32. 33.

For details, see www.rcfv.com.au (accessed 15 February 2016). ‘Not Now — Not Ever’: Putting an End to Domestic and Family Violence in Queensland, available at www.qld.gov.au (accessed 15 February 2016).

34. 35.

See further, www.qld.gov.au (accessed 15 February 2016). Family Law Council, Interim Report to the Attorney-General, In Response to the First Two Terms of Reference on Families with Complex Needs and the Intersection with Family Law and Child Protection Systems, June 2015, p 95, available at www.ag.gov.au (accessed 15 February 2016).

36.

Commonwealth Attorney-General and the Minister Assisting the Prime Minister for Women, ‘National Family Violence Bench Book’, Joint Media Release, 9 June 2015, available at www.attorneygeneral.gov.au (accessed 15 February 2015). Available at www.dpmc.gov.au/taskforces/reducing-violence-women (accessed 15 February 2016).

37. 38. 39. 40.

41. 42. 43.

Senate Finance and Public Administration References Committee, Domestic Violence in Australia, August 2015, available at www.aph.gov.au (accessed 15 February 2016). Details available at www.aph.gov.au (accessed 15 February 2016). Prime Minister’s Office, ‘Women’s Safety Package to Stop the Violence’, Media Release, 24 September 2015, available at www.malcolmturnbull.com.au (accessed 15 February 2016). Available at www.dpmc.gov.au (accessed 15 February 2016). Available at www.coag.gov.au/taskforces/reducing-violence-women (accessed 15 February 2016). National Committee on Violence, Violence: Directions for Change, Australian Institute of Criminology, Canberra, 1990.

44. 45.

See https://aifs.gov.au (accessed 16 February 2016). Commonwealth of Australia, Protecting Children Is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–20, 2009.

46. 47.

Available at www.childprotectioninquiry.nt.gov.au (accessed 2 March 2016). Available at www.dpc.nsw.gov.au/publications/news/stories/?a=33796 (accessed 2 March 2016).

48. 49.

Available at www.keepthemsafe.nsw.gov.au (accessed 2 March 2016). R Cassells et al, Keep Them Safe Outcomes Evaluation: Final Report, New South Wales Department of Premier and Cabinet, Sydney, 2014, available at www.keepthemsafe.nsw.gov.au (accessed 16 February 2016).

50.

Victorian Law Reform Commission, Protection Applications in the Children’s Court, Final Report 19, Victorian Government Printer, Melbourne, 2010, available at www.lawreform.vic.gov.au (accessed 2 March 2016).

51. 52.

Available at www.childprotectioninquiry.vic.gov.au (accessed 2 March 2016). For a discussion of the implementation of the recommendations from the Cummins Report, see Legal and Social Issues Committee, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, August 2015, available at www.parliament.vic.gov.au (accessed 16 February 2016).

53.

Taking Responsibility: A Roadmap for Queensland Child Protection, available at www.childpretectioninquiry.qld.gov.au (accessed 25 February 2016). Queensland Government Response to the Queensland Child Protection Commission of Inquiry Final Report, December 2013, available at www.communities.qld.gov.au (accessed 25 February 2016).

54.

55. 56.

For further information, see www.justice.qld.gov.au (accessed 25 February 2016). Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 6.

57.

See the obiter comment of the Full Court in Langmeil & Grange [2013] FamCAFC 31 at [25]. [2013] FamCAFC 110 at [134].

58. 59. 60.

M Rayner, ‘Home Truths’ (1995) 5 Eureka Street 16 at 17. Australian Human Rights Commission, Children’s Rights Report 2015, 2015, www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2015 (accessed 9 February 2016).

61.

M Mitchell, Children’s Commissioner, Launch of Children’s Rights Report 2015, 7 December 2015, www.humanrights.gov.au/news/speeches/launch-childrens-rights-report-2015 (accessed 9 February 2016). Australian Human Rights Commission, Children’s Rights Report 2015, 2015, www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2015 (accessed 9 February 2016).

62.

63. 64. 65.

66.

S Peel and R Croucher, ‘Mind(ing) the Gap: Law Reform Recommendations Responding to Child Protection in a Federal System’ (2011) Family Matters 21 at 23. See, for example, Property (Relationships) Act 1984 (NSW) s 53. Seminara & Ferguson (1993) 16 Fam LR 410. De facto relationship legislation in Western Australia also provides injunctive relief similar to the FLA: see Family Court Act 1997 (WA) Pt 11. Leibinger & Leibinger (No 2) (1986) 11 Fam LR 33; FLC ¶91-775.

67. 68.

A Nicholson CJ, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 1. See R Alexander, Domestic Violence in Australia: The Legal Response, 3rd ed, Federation Press, Leichhardt, 2002, Ch 3.

69.

See, for example, Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, Ch 7; Australian Law Reform Commission (ALRC), Report No 69, Part I, Equality Before the

70. 71. 72.

Law: Justice for Women, AGPS, Canberra, 1994, [9.72]–[9.75]. Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 1. See Chief Justice A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 4.

73.

See, for example, Family Court of Australia, ‘Chief Justice Bryant Calls for Crucial Funding of Family Law Courts to Address Family Violence’, Media Release, 10 October 2015, available at www.familycourt.gov.au (accessed 6 March 2016). See www.familycourt.gov.au (accessed 2 March 2016).

74. 75.

Ibid. Available at www.familylawsection.org.au (accessed 2 March 2016).

76. 77.

Marriage of Kemsley (1984) 10 Fam LR 125 at 130; FLC ¶91-567. (2008) FLC ¶93-365.

78. 79.

Seminara v Ferguson (1993) 16 Fam LR 410. English & English (1986) 10 Fam LR 808; FLC ¶91-729.

80. 81.

See, for example, O’Dea & O’Dea (1980) 6 Fam LR 675; FLC ¶90-896. Fedele & Fedele (1986) 10 Fam LR 1069 at 1075; FLC ¶91-744; see also Davis & Davis (1976) 1 Fam LR 11,522; FLC ¶90-062; Jolly & Jolly (1978) FLC ¶90-458; Page & Page (1980) 6 Fam LR 669; (1981) FLC ¶91-025; Briers & Briers (1978) FLC ¶90-483; O’Dea &O’Dea (1980) 6 Fam LR 675; FLC ¶90-896; Davis & Davis (1982) 8 Fam LR 975; FLC ¶91-319.

82. 83.

(1983) 8 Fam LR 975; FLC ¶91-319 at 75,309. R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, Law Book Co, Sydney, [980].

84. 85.

See FLA s 114(1)(b), (2A)(b); Marriage of Merryman (1994) FLC ¶92-497. Gillespie v Bahrin (1993) 16 Fam LR 642; (1992) FLC ¶92-388.

86. 87.

(2010) 44 Fam LR 486; FLC ¶93-446. (2001) 27 Fam LR 615; (2001) FLC ¶93-074.

88.

See KN & SD & Department of Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 394; FLC ¶93-148; Bennett & Bennett (2001) 28 Fam LR 231; FLC ¶93-088. See, for example, Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 7(1)(b); Family Violence Protection Act 2008 (Vic) ss 5(1)(b), 8(1)(d)–(e).

89. 90. 91.

(1984) 10 Fam LR 125; FLC ¶91-567. See also R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, [59] for further discussion of this point.

92.

93.

See Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, [7.120]–[7.133], Recommendations 50–5 and 58–9; Australian Law Reform Commission Report No 69, Part I: Equality Before the Law: Justice for Women, 1994, [9.72]. See R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, [990].

94.

Cauchi & Cauchi (1994) FLC ¶92-447.

95.

See Pts XIIIA, XIIIB.

96. 97.

See ss 112AD, 112AP. Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, [7.110.1] and Recommendations 58, 59; Australian Law Reform Commission (ALRC), Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, [9.74].

98. 99.

(1992) 15 Fam LR 545; FLC ¶92-303. (1992) 15 Fam LR 545 at 554–5.

100. (1995) 19 Fam LR 649; FLC ¶92-638. 101. (2002) 29 Fam LR 195; FLC ¶93-107. 102. Mead & Mead (2006) FLC ¶93-267. This decision was appealed to the High Court, but only on the question of whether one of the elements was, in fact, proved to this standard: Mead & Mead (2007) 36 Fam LR 806; FLC ¶93-327. 103. See R Alexander, ‘Domestic Violence’, Subtitle 17.5, The Laws of Australia, [1120]. 104. For a good overview of the legislation in the various states and territories, see A Harland et al, Family Law Principles, Lawbook Co, NSW, 2011, Ch 6. 105. Family Violence Protection Act 2008 (Vic) s 7. 106. For further details about the Queensland legislation, see www.communities.qld.gov.au (accessed 15 February 2015). 107. Domestic and Family Violence Act 2007 (NT) s 124A. 108. New South Wales Bureau of Crime Statistics and Research Evaluation, available at www.bocsar.nsw.gov.au (accessed 15 February 2016). 109. See the Tasmanian Government’s Safe Homes, Safe Families: Tasmania’s Family Violence Action Plan 2015–2020, available at www.safeathome.tas.gov.au (accessed 15 February 2016). 110. (2000) 27 Fam LR 133; (2001) FLC ¶93-067. For a discussion of the relationship between Family Court orders and terms imposed as a condition of bail (and therefore, not under ‘prescribed’ laws), see Dunne & P (No 2) (2004) 32 Fam LR 441; FLC ¶93-205. 111. Crimes (Family Violence) Act 1987 (Vic). 112. R Alexander, ‘Women and Domestic Violence’ in P Easteal (ed), Women and the Law in Australia, LexisNexis Butterworths, Sydney, 2010, pp 152, 172. 113. P Nygh, ‘The New Part VII: An Overview’ (1996) 10 Australian Journal of Family Law 4 at 10. 114. For a discussion on the interaction between the FLA and state and territory protection orders, see generally J Faulks, ‘Condemn the Fault and Not the Actor? Family Violence: How the Family Court of Australia Can Deal with the Fault and the Perpetrators’ (2010) 33 University of New South Wales Law Journal 818. 115. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response: Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010, Recommendation 16-1.

Jurisdictions with direct reference to s 68R of the FLA: Domestic and Violence 116. Protection Act 2012 (Qld) ss 76, 78; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 10(2), 16(1); Family Violence Protection Act 2008 (Vic) ss 89, 90. Jurisdictions that reference FLA orders generally and require that FLA orders must be considered when making a protection order: Family Violence Act 2004 (Tas) ss 18, 33; Domestic and Family Violence Act 2007 (NT) ss 19(2)(a), 90; Restraining Order Act 1997 (WA) ss 5, 13, 65, 66; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 42(3)(b). Note that the Family Violence Act 2004 (Tas) s 33 requires protection orders to operate subject to any FLA order, and the Restraining Order Act 1997 (WA) s 65 prohibits a court from making a restraining order that conflicts with an FLA order if no jurisdiction exists to adjust the FLA order (thus indirectly referencing the operation of s 68R). 117. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response: Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010, [16.97]. 118. See, for example, Family Violence Act 2004 (Tas) s 18; Restraining Order Act 1997 (WA) s 12; Family Violence Protection Act 2008 (Vic) s 80. 119. See, for example, Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(2) (a),(b); Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 42(3)(b). 120. See the Royal Commission on Human Relationships, Final Report, AGPS, Canberra, 1978, vol 4, p 160. 121. Ibid, p 161. 122. See M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80. For further discussion of what constitutes child abuse, see R Price-Robertson and L Bromfield, What is Child Abuse and Neglect?, National Child Protection Clearinghouse, Resource Sheet Number 6, AIFS, Melbourne, 2009. 123. See A Tomison, ‘Spotlight on Child Neglect’ (1995) 4 Issues in Child Abuse Prevention 1; M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80. 124. See M James, ibid. 125. Australian Institute of Health and Welfare (AIHW), A Picture of Australia’s Children, AIHW, Canberra, 2005, p 56; R Price-Robertson and L Bromfield, What is Child Abuse and Neglect?, National Child Protection Clearinghouse, Resource Sheet Number 6, AIFS, Melbourne, 2009; World Health Organization, Preventing Child Maltreatment: A Guide to Taking Action and Generating Evidence, Geneva, 2006. 126. See P Holzer and A Lamont, Corporal Punishment: Key Issues, National Child Protection Clearinghouse Resource Sheet Number 19, AIFS, Melbourne, 2010. 127. See, for example, R v Terry [1955] VLR 114. 128. See, for example, Criminal Code 1913 (WA) s 257; Criminal Code Act 1924 (Tas) s 50. For a recent summary of the issues and law relating to corporal punishment, see AIFS, Corporal Punishment — Key Issues, Child Family Community Australia Resource Sheet, March 2014, available at https://aifs.gov.au (accessed 15 February 2016). 129. See the Australian Government’s position set out in Australia’s Combined Second and

Third Reports under the Convention on the Rights of the Child, Attorney-General’s Department, Canberra, 2003, [185]. 130. See generally, J Cashmore and N de Hass, Legal and Social Aspects of the Physical Punishment of Children: A Discussion Paper Commissioned by the Commonwealth Department of Human Services under the Auspices of the National Child Protection Council, AGPS, Canberra, 2005. 131. See Royal Children’s Hospital, Policy Brief No 20, 2010, available at www.rch.org.au (accessed 20 May 2012); B Saunders and C Goddard, Physical Punishment in Childhood. The Rights of the Child, Wiley, Chichester, 2010. 132. Child Family Community Resource Sheet, Corporal Punishment: Key Issues, March 2014, available at www.aifs.gov.au (accessed 18 February 2016). 133. Committee on the Rights of the Child, The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment, 2007, available at www2.ohchr.org (accessed 20 May 2012). For a discussion, see R Ludbrook, ‘The Child’s Right to Bodily Integrity’ (1995) 7 Current Issues in Criminal Justice 124; P Holzer and A Lamont, Corporal Punishment: Key Issues, National Child Protection Clearinghouse Resource Sheet No 19, AIFS, Melbourne, 2010; M Straus, ‘Prevalence, Societal Causes, and Trends in Corporal Punishment by Parents in World Perspective’ (2010) 73 Law and Contemporary Problems 1. For a comment on international moves in this area, see B Phillips and P Alderson, ‘Beyond AntiSmacking: A Series of Updates’ (2004) 38 Australian Children’s Rights News 14. 134. Tasmanian Law Reform Institute, Final Report No 4, Physical Punishment of Children, University of Tasmania, Hobart, 2003. 135. See, for example, World Health Organization, Female Genital Mutilation, Fact Sheet, 2012, available at www.who.int (accessed 21 May 2012) and the recommendations of the Family Law Council of Australia in its 1994 report, Female Genital Mutilation: A Report to the Attorney-General, AGPS, Canberra, 1994. 136. See A Funder, ‘Culture a Lethal Cloak: Female Genital Mutilation in Australia’ (1995) 3 The Crossexaminer 16; L Manderson, ‘Local Rites and Body Politics: Tensions between Cultural Diversity and Human Rights’ (2004) 6(2) International Feminist Journal of Politics 285. 137. Crimes Act 1900 (ACT) Pt 4; Crimes Act 1900 (NSW) s 45; Criminal Code Act 1983 (NT) Pt VI Div 4A; Criminal Code Act 1899 (Qld) ss 323A, 323B; Criminal Law Consolidation Act 1935 (SA) Pt 3 Div 8; Criminal Code Act 1924 (Tas) ss 178A, 178B; Crimes Act 1958 (Vic) ss 32–34A; Criminal Code Act Compilation Act 1913 (WA) s 306. 138. Review of Australia’s Female Genital Mutilation Legal Framework: Final Report, Attorney-General’s Department, Commonwealth of Australia, available at www.ag.gov.au (accessed 14 February 2016). 139. Crimes Act 1900 (NSW) s 45. 140. See P Ferrari, ‘Female Genital Mutilation: We Must Save Australian Girls from this Cruelty’, The Drum, 22 September 2015, www.abc.net.au/news/2015-09-22/ferrari-fgm-in-australia/6794278 (accessed 14 February 2016). 141. For more information, see the UK Government’s response to the Second Report from the Home Affairs Select Committee Session 2014–15, HC 201, Female Genital

Mutilation: The Case for a National Action Plan, December 2014, available at www.gov.uk (accessed 14 February 2016). 142. Child Family Community Resource Sheet, Child Abuse and Neglect Statistics, AIFS, July 2015, available at www.aifs.gov.au (accessed 15 February 2016). 143. Child Family Community Resource Sheet, The Economic Costs of Child Abuse and Neglect, AIFS, December 2015, available at www.aifs.gov.au (accessed 18 February 2016). 144. See M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80 at 82–3. 145. Ibid at 82; Victorian Department of Human Services, ‘What is Child Abuse?’, available at www.dhs.vic.gov.au (accessed 21 May 2012). 146. For further details, see Child Family Community Australia, Who Abuses Children?, CFCA Resource Sheet, September 2014, available at www.aifs.gov.au (accessed 18 February 2016). 147. See R Oates, ‘Understanding Child Sexual Abuse’ (1990) 67 Current Affairs Bulletin 21; Child Sexual Abuse: Understanding and Responding: For Professionals Working with Children Who Have Experienced Sexual Abuse, Office for Children, Victorian Government Department of Human Services, Melbourne, 2009. 148. K O’Hagan, Working with Child Sexual Abuse: A Post Cleveland Guide to Effective Principles and Practice, Open University Press, Milton Keynes and Philadelphia, 1989, pp 22–9. 149. See A Tomison, ‘Exploring Family Violence: Links between Child Maltreatment and Domestic Violence’ (2000) 13 Issues in Child Abuse Prevention. See also Child Sexual Abuse: Understanding and Responding: For Professionals Working with Children Who Have Experienced Sexual Abuse, Office for Children, Victorian Government Department of Human Services, Melbourne, 2009. 150. D Finkelhor, Child Sexual Abuse: New Theory and Research, The Free Press, New York, 1984. 151. See M James, ‘Domestic Violence as a Form of Child Abuse: Identification and Prevention’ (1994) 2 Issues in Child Abuse Prevention. 152. See A Tomison, ‘Exploring Family Violence: Links between Child Maltreatment and Domestic Violence’ (2000) 13 Issues in Child Abuse Prevention. 153. See A Tomison, ‘Update on Child Sexual Abuse’ (1995) 5 Issues in Child Abuse Prevention. 154. J Beven, ‘Child Maltreatment’ in G Monahan and L Young, Children and the Law in Australia, LexisNexis Butterworths, Sydney, 2008, p 107. 155. On this issue generally, see Child Family Community Australia, ‘Effects of Child Abuse and Neglect for Children and Adolescents’, CFCA Resource Sheet, January 2014; Child Family Community Australia, Effects of Child Abuse and Neglect for Adult Survivors, CFCA Resource Sheet, January 2014, both available at www.aifs.gov.au (accessed 18 February 2016). 156. Child Family Community Australia, Child Deaths from Abuse and Neglect, CFCA Resource Sheet, August 2014, available at www.aifs.gov.au (accessed 15 February 2016). 157. See Australian Law Reform Commission (ALRC), Report No 69, Part I: Equality Before

the Law: Justice for Women, AGPS, Canberra, 1994, [9.16]. See also A Lamont, Effects of Child Abuse and Neglect for Children and Adolescents, National Child Protection Clearinghouse Resource Sheet, AIFS, Melbourne, 2010. 158. M James, ‘Child Abuse and Neglect’ (1994) 37 Family Matters 80 at 84. 159. J Cashmore and R Shackel, The Long-term Effects of Childhood Sex Abuse, Child Family Community Australia Paper No 11, January 2013, available at www.aifs.gov.au (accessed 25 February 2016). 160. See, for example, H Gamble, Law for Parents and Children, 2nd ed, Law Book Co, Sydney, 1986, p 108. 161. Royal Commission on Human Relationships: Final Report, AGPS, Canberra, 1978, [235]. 162. Ibid, [234]. 163. D Higgins and R Kaspiew, ‘Child Protection and Family Law Joining the Dots’ (2011) NCPC Issues 6. 164. Ibid. 165. D Higgins and R Kaspiew, ‘Mind the Gap … Protecting Children in Family Law Cases’ (2008) 22 Australian Journal of Family Law 235 at 244. 166. For a discussion, see the Royal Commission on Human Relationships Final Report, AGPS, Canberra, 1978, [243]. 167. See, for example, A Carment, ‘Mandatory Notification of Child Abuse and Neglect’ (1990) 25 Australian Journal of Social Issues 15; S Bird, ‘Mandatory Notification of Child Abuse: When to Report?’ (2005) 34 Australian Family Physician 779. 168. See, for example, F Ainsworth, ‘Mandatory Reporting of Child Abuse and Neglect: Does it Really Make a Difference?’ (2002) 7 Child and Family Social Work 57; J Cashmore, ‘Mandatory Reporting: Is It the Culprit? Where Is the Evidence?’ (2002) 4 Developing Practice 9; C Humphreys, ‘Problems in the System of Mandatory Reporting of Children Living with Domestic Violence’ (2008) 14 Journal of Family Studies 228. 169. Children and Young People Act 2008 (ACT) s 356; Children and Young Person’s (Care and Protection) Act 1998 (NSW) ss 23, 27; Care and Protection of Children Act (2007) (NT) ss 15, 16, 26; Child Protection Act 1999 (Qld) Ch 2 Pt 1AA; Education (General Provisions) Act (Qld) 2006 ss 364, 365, 365A, 366, 366A; Children’s Protection Act 1999 (SA) Chapter 2 Pt 1AA; Children, Young Persons and their Families Act 1997 (Tas) ss 3, 4, 14; Children, Youth and Families Act 2005 (Vic) ss 182(1)(a)–(e), 184, 162(c)–(d); Children and Community Services Act 2004 (WA) ss 124A, 124B; Family Court Act 1997 (WA) ss 5, 160. 170. L Young et al, Family Law in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2013, [3.35ff]. 171. August 2014, available at www.aifs.gov.au (accessed 18 February 2016). 172. D Higgins and R Kaspiew, ‘Child Protection and Family Law … Joining the Dots’ (2011) NCPC Issues 6. 173. Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 11. 174. (2001) 28 Fam LR 45; FLC ¶93-085.

175. See Family Law Amendment Act 2003 (Cth). 176. See also the Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Family Law Act 1975: Aspects of its Operation and Interpretation, 1992, p 142. 177. Australian Institute of Health and Welfare (AIHW), Child Protection Australia 2006– 07, Child Welfare Series No 43, AIHW, Canberra, 2008, p 4. This is also reflected in the relevant legislation; for example, Children and Community Services Act 2004 (WA) s 9(a), (b), (f). 178. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 36(1)(c). 179. Children and Young People Act 2008 (ACT) Chs 10–19; Children and Young Persons (Care and Protection) Act 1998 (NSW) Chs 4, 5; Care and Protection of Children Act 2007 (NT) Ch 2; Child Protection Act 1999 (Qld) Ch 2; Children’s Protection Act 1993 (SA) Pt 5; Children, Young Persons and Their Families Act 1997 (Tas) Pt 5; Children Youth and Families Act 2005 (Vic) Ch 4; Children and Community Services Act 2004 (WA) Pt 4. 180. For a summary, see Child Family Community Australia, Australian Legal Definitions: When is a Child in Need of Protection?, CFCA Resource Sheet, August 2014, available at www.aifs.gov.au (accessed 18 February 2016). 181. Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89; SB v Parramatta Children’s Court [2007] NSWSC 1297. 182. P Cummins, D Scott and B Scales, Parliament of Victoria, Protecting Victoria’s Vulnerable Children Inquiry Report, 2012, available at www.childprotectioninquiry.vic.gov.au (accessed 2 March 2016). 183. Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 (Vic). 184. Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015 (Vic). For a discussion of the implementation of the recommendations from the Cummins Report: see Legal and Social Issues Committee, Parliament of Victoria, Inquiry into the Children, Youth and Families Amendment (Restrictions on the Making of Protection Orders) Bill 2015, August 2015, available at www.parliament.vic.gov.au (accessed 16 February 2016). 185. Children and Community Services Act 2004 (WA) s 30; Care and Protection of Children Act 2007 (NT) s 67; cf Children’s Protection Act 1993 (SA) s 43, which still refers to guardianship. To determine the impact that a protection order has on parental responsibility, regard should be had to the state and territory legislation. 186. See Australian Institute of Health and Welfare (AIHW), Child Protection Australia 2006–07, Child Welfare Series No 43, AIHW, Canberra, 2010–11, p 32. 187. Ibid, p 51, citing A Forwood and MA Carver, ‘The Reunification of South Australian Children with their Families: Case Characteristics and Outcomes Preliminary Findings’, Proceedings from the 7th Australian Conference on Child Abuse and Neglect, Promaco Conventions, Western Australia, 1999, p 740. 188. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response Final Report, ALRC Report No 114/ NSWLRC Report No 128, Commonwealth of Australia, 2010,

[19.46]. 189. (1988) 166 CLR 69. 190. See, for example, Akston & Boyle (2010) FLC ¶93-436. 191. (2010) 45 Fam LR 1; FLC ¶93-457. 192. See generally, T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (2009) 23 Australian Journal of Family Law 194. 193. For a general discussion on the fragmented family law system, see H Astor and R Croucher, ‘Fractured Families, Fragmented Responsibilities Responding to Family Violence in a Federal System’ (2010) 33 University of New South Wales Law Journal 854. 194. Australian Law Reform Commission (ALRC) and New South Wales Law Reform Commission (NSWLRC), Family Violence: A National Legal Response Final Report, ALRC Report No 114/NSWLRC Report No 128, Commonwealth of Australia, 2010, [19.79]. 195. S Peel and R Croucher, ‘Mind(ing) the Gap: Law Reform Recommendations Responding to Child Protection in a Federal System’ (2011) 89 Family Matters 21 at 27. 196. Available at www.ag.gov.au (accessed 19 February 2016). 197. Ibid. 198. Pages 47–8. 199. Ford & Ford & Department of Child Safety (2007) FLC ¶93-337. 200. If officers of a state or territory child welfare agency intervene in proceedings following a request by the court and act in good faith, s 117(4A) provides immunity from orders for or security for costs. 201. H Gibbs, ‘The Law and Child Abuse’ (1992) 24 Australian Journal of Family Law 3 at 4. 202. (2010) 45 Fam LR 1; FLC ¶93-457. 203. (2010) 45 Fam LR 1 at [83]. 204. Ibid at [96]. For a discussion on this decision, see B Fehlberg, ‘Parenting Disputes and Child Protection Laws’ (2011) 25 Australian Journal of Family Law 157. 205. See Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Issues Paper 18, Speaking for Ourselves: Children and the Legal Process, 1996, [7.64]. 206. For a discussion of the issues, see F Kelly and B Fehlberg, ‘Jurisdictional Overlaps between the Family Division of the Children’s Court and the Family Court of Australia’ (2000) 14 Australian Journal of Family Law 211. 207. Family Law Council, Child Sexual Abuse, AGPS, Canberra, 1988, pp 30–1. 208. See, for example, the views of Chief Justice Nicholson, set out in a paper delivered to the Australian Psychological Society International Conference, ‘Domestic Violence and Child Abuse — The Professional’s Professional Problem’, 10 September 1988. 209. Australian Law Reform Commission (ALRC), Report No 84, Seen and Heard: Priority

for Children in the Legal Process, AGPS, Canberra, 1997. 210. Ibid, [15.2]. 211. Family Law Council, Family Law and Child Protection, AGPS, Canberra, 2002. 212. House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003, [4.26]. 213. See Family Law Council, Family Law and Child Protection, AGPS, Canberra, 2002, Recommendation 13. 214. See also Recommendation 19-3. 215. (1996) 20 Fam LR 743; FLC ¶92-694. 216. This Act was replaced by the Care and Protection of Children Act 2007 (NT) on 8 December 2008. The new confidentiality provision is found in s 308. 217. (1999) 24 Fam LR 253; 161 ALR 318; FLC ¶92-838. 218. (1999) 24 Fam LR 253 at [139]. 219. Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, p 9. 220. See, for example, Australian Law Reform Commission (ALRC), Report No 84, Seen and Heard: Priority for Children in the Legal Process, AGPS, Canberra, 1997, Chs 15, 16. 221. T Brown, ‘Project Magellan’, Paper presented at the Child Sexual Abuse: Justice Response or Alternative Resolution Conference convened by the Australian Institute of Criminology, Adelaide, 2003, p 2. 222. See ibid for further details. 223. Ibid, pp 7–8. 224. D Higgins, Cooperation and Coordination: An Evaluation of the Family Court of Australia’s Magellan Case-management Model, Family Court of Australia and AIFS, Canberra, 2007. 225. Australian Human Rights Commission, Children’s Rights Report 2015, 2015, Recommendation 10, www.humanrights.gov.au/our-work/childrens-rights/publications/childrens-rights-report-2015 (accessed 9 February 2016). 226. Note that under ss 67Z and 67BA, if ‘an interested person’ — which includes a party and an independent children’s lawyer to any proceedings under the FLA — alleges a child has been abused or is at risk of abuse or there has been family violence or a risk of family violence, then they must file a Form 4 ‘Notice of Child Abuse or Family Violence’. Rule 2.04E of the Family Law Rules 2004 (Cth) was introduced to supplement s 67ZBB to capture situations where proceedings were instituted before 7 June 2012, and a party to the proceedings alleges that there has been or there is a risk of family violence by one of the parties to the proceedings, and the party making the allegation has not previously filed a Form 4. In addition, if the alleged or risk of violence or abuse involves a child, the Registry Manager must notify a child welfare authority. 227. P Murphy and L Pike, Evaluation of the Columbus Pilot in the Family Court of Western Australia: Final Report, Report prepared for the Family Court of Western Australia

and School of Psychology, Edith Cowan University, Perth, 2005. 228. Ibid, p 1. 229. Ibid, pp 2–4. 230. For a more detailed description of the Case Assessment Conference Model, see P Murphy, L Pike and P Kerin, ‘Developing the Case Assessment Conference Model in the Family Court of Western Australia: Breaking Down the Firewall’ (2005) 11 Journal of Family Studies 111.

[page 156]

4 CONSTITUTIONAL POWERS AND THE FAMILY COURTS ___________________________

Introduction 4.1 This chapter considers the power conferred by the Australian Constitution on the Commonwealth Parliament to legislate for family law in Australia. The first part of the chapter examines the constitutional powers that underpin the Family Law Act 1975 (Cth) (FLA) and the Marriage Act 1961 (Cth) (Marriage Act). The chapter then examines domicile and the modern-day principles by which the court’s jurisdiction over parties bringing proceedings for matrimonial causes is established. The final part of the chapter identifies the courts that are invested with jurisdiction to determine family law matters in Australia and the appeal system applied to those courts.

Constitutional powers 4.2 The Australian Constitution, which commenced on 1 January 1901, vests in the Commonwealth certain powers to make laws with respect to 40 enumerated subjects. Most of these are

found in s 51. The relevant areas for family law purposes are found in placita (xxi) and (xxii). Consequently, s 51, with these two placita, reads as follows: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: … (xxi) marriage; (xxii) divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants.

Additionally, placitum (xxxix) confers an incidental power to enable the making of legislation in matters incidental to the execution of any power vested in the parliament. [page 157] 4.3 The High Court of Australia has said repeatedly that the connotation or meaning of a given term in the Constitution remains fixed as it was in 1900, while its denotation or the extent of its application changes according to circumstances.1 In the 1999 case of Re Wakim; Ex parte McNally,2 McHugh J commented: … many words and phrases of the Constitution are expressed at such a level of generality that the most sensible conclusion to be drawn from their use in a Constitution is that the makers of the Constitution intended that they should apply to whatever facts and circumstances succeeding generations thought they covered.3

While the meanings of the terms ‘marriage’ and ‘divorce’ have remained fairly constant, the changes that have taken place have largely occurred by legislative action rather than by judicial interpretation. Interestingly, in the context of ‘marriage’, McHugh J in Re Wakim also commented: … in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to

legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others. (original emphasis)4

Of course, the insertion of a formal definition of ‘marriage’ into the Marriage Act in 2004 made it clear that parliament did not share the former High Court justice’s optimism for any future modification in the traditional view of marriage.5 Indeed, while the political debate continues more than a decade later, it is clear that it is constitutionally possible for parliament to legislate to change the definition of marriage. This was recently confirmed by the High Court in Commonwealth v Australian Capital Territory.6 In that case, the High Court considered legislation enacted in the Australian Capital Territory7 that purported to confer a right to marry for same-sex couples who were unable to marry under the federal legislation. In a unanimous decision, the High Court (French CJ, Hayne, Crennan, Kiefel, [page 158] Bell and Keane JJ) found that the Australian Capital Territory legislation could not operate concurrently with the Marriage Act 1961 (Cth).8 The High Court held that the federal legislation, which currently defines marriage as being between persons of the opposite sex, was a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriages in Australia.9 In respect of the meaning of ‘marriage’, the High Court stated: Once it is accepted that ‘marriage’ can include polygamous marriages, it becomes evident that the juristic concept of ‘marriage’ cannot be confined to a union having the characteristics described in Hyde [v Hyde & Woodmansee10] and other nineteenth century cases. Rather, ‘marriage’ is to be understood in s 51(xxi) of the Constitution as referring to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.11

After noting that other legal systems have now provided for samesex marriage, the High Court confirmed that when used in s 51(xxi) of the Australian Constitution, ‘marriage’ is a term that includes a marriage between persons of the same sex.12 This decision has therefore settled the debate over whether the Federal Parliament has power to legislate with respect to same-sex marriage. 4.4 If family law is viewed as an integral and homogeneous subject area on which it is appropriate to legislate, containing within it subject matters requiring a uniform approach, the conferral of legislative power has been incomplete. The Commonwealth has, in fact, no power with respect to ‘family law’.13 As Barwick CJ said in the 1981 case of Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson,14 ‘the constitutional power does not relate to family, but relevantly so far as concerns present matters only to marriage and matrimonial causes’. But while a uniform approach may appear desirable in Australia after more than a [page 159] century of Federation, this was far from self-evident in 1901. Then, the resolution of family disputes was seen as raising legal problems requiring legal remedies, rather than as involving social and behavioural problems, the solution to which might more profitably be looked for in the social and behavioural sciences. In keeping with this approach, family relationships were viewed as being dominated by legal rights and duties, and any problems involved the infringement of these rights and the dereliction of such duties. As such, legal action was required to solve them. 4.5 The necessity of looking for a constitutional foundation for Commonwealth power over family law in two separate paragraphs

must arguably make for a fragmented approach. Even adding them together, they fall far short of providing a comprehensive system of family law. It is clear that an integrated approach to family law as a discrete area of private law is not possible in the absence of the conferral of a plenary power identified as such and capable of being delimited by reference to a full range of rights, duties and legal relationships answering to the description ‘family law’. 4.6 The statement of the two subjects ‘marriage’ and ‘matrimonial causes’ in two separate paragraphs does not mean that they form two watertight compartments. It is well recognised that a law may be characterised as being a law with respect to more than one particular subject matter;15 overlapping may therefore occur. A law may be a law with respect both to marriage and to matrimonial causes. Indeed, divorce may be viewed as a particular aspect of marriage, namely the termination of that relationship. The view, for instance, that if placitum (xxii) had not been included in s 51 of the Constitution there would have been no power to make laws providing for divorce solely in reliance on placitum (xxi), is unnecessarily narrow and must now be regarded as discredited.16 Indeed, an existing Commonwealth power may be used in furtherance of an objective not directly within Commonwealth jurisdiction, if that objective can be regarded as being ‘associated with matters in which the jurisdiction of the Commonwealth is invoked’.17 The availability of this ‘associated jurisdiction’, discussed at 4.83, is expressly recognised in s 33 of the FLA. 4.7 This brief reference to the legal delimitation of the powers with respect to marriage and divorce reflects the view held at the time of Federation, that these two subjects were concerned primarily with legal rights and duties. For example, John Quick and Robert Garran’s Annotated Constitution of the Commonwealth of [page 160]

Australia, the authoritative commentary published in 1901, deals with the topic of marriage in a way that is revealing of attitudes held at the turn of the last century: Marriage is a relationship originating in contract, but it is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations and responsibilities which are determined and annexed to it by law independent of contract. According to the law of England a marriage is a union between a man and a woman on the same basis as that on which the institution is recognised throughout Christendom, and its essence is that it is (1) a voluntary union, (2) for life, (3) of one man and one woman, (4) to the exclusion of all others. Laws relating to this subject will therefore embrace (1) the establishment of the relation including preliminary conditions, contractual capacity, banns, licence, consent of parents or guardians, solemnisation, evidence, and rules in restraint, (2) the consequences of the relation, including the status of the married parties, their mutual rights and obligations, the legitimacy of children and their civil rights. Quaere whether this power will enable the Parliament to legislate with respect to breach of promise of marriage; immoral agreements concerning marriage; and the separate property of married women. It could be argued that the first two matters belong to the general law of contracts, and the last one to the general law relating to civil rights; both of which classes of laws are reserved to the states. It might be said, however, that they impinge on the principal ground of power, ‘marriage’, and are conveyed by it.18

4.8 In the Commonwealth Constitution, as a general principle, private rights were regarded as more appropriately a matter for the states than for the Commonwealth. However, in the important matter of personal status, it was felt that the case for uniformity was unanswerable.19 We see, running through this authoritative commentary, the theme that divorce was indeed the subject of placitum (xxii) so as to enable the Federal Parliament ‘to abolish the varied and conflicting divorce laws which prevail in the States, and to establish uniformity in the cases for which divorce may be granted throughout the Commonwealth’.20 Reference was made to the example of the United States and the mistake made in that country in omitting to give its federal government the ability ‘to provide a number of contiguous and autonomous communities with uniformity of legislation on subjects of such vital and national importance as marriage and

divorce’. ‘Matrimonial causes’ in placitum (xxii) was regarded as being concerned [page 161] with matters ‘subsidiary and consequential to marriage and divorce’, including ‘probably maintenance of wives and children, and marriage settlements’.21 Later developments in the law of matrimonial causes have removed many doubts on this aspect, but the fact that the learned authors felt doubts at all shows the extent to which private rights were thought, in 1901, to be matters that should remain within the jurisdiction of the states. Again, in relation to parental rights it was made clear that the transfer of power to the Commonwealth was strictly limited to what was incidental to divorce and matrimonial causes, in order to make those powers more complete.22 4.9 Harrison Moore’s view was that with the diversity of matrimonial laws in the six Australian states, individuals might be regarded as married in one state and single in another.23 This directly contradicts what must have been one of the main underlying reasons for entrusting marriage and divorce to the Commonwealth. Certainly, it was not borne out in the 60 years after Federation, when the Commonwealth did not choose to exercise these two powers, but left the states to continue to occupy the area practically unhampered until the Marriage Act and the Matrimonial Causes Act 1959 (Cth) (Matrimonial Causes Act) were enacted. A study of the early Australian constitutional authorities shows that what was chiefly in the minds of the framers of the Constitution was the need to ensure the recognition of such a basic institution as marriage in the different parts of the new Commonwealth and beyond its borders, throughout what was then known as the British Empire. Legislation for marriage

necessarily also implied legislation for its dissolution, since the recognition of a person’s status as a divorced person was a necessary precondition to the capacity to remarry. Both Harrison Moore and Quick and Garran24 make it clear that recognition of the validity of marriage and divorce is regarded as of considerable importance. 4.10 If the approach to ‘family law’ in the Constitution appears to us as a piecemeal solution, it did not, as it turned out, raise many constitutional problems for the first 60 years of Federation. As previously mentioned, the Commonwealth chose not to exercise the substance of its jurisdiction under s 51(xxi) and (xxii) of the Constitution, and these matters remained within the jurisdiction of the states. The Commonwealth had ventured into the matrimonial causes field during World Wars I and II, when jurisdictional problems arose from the movement of servicemen into, out of, and within Australia. When marriage breakdown — which seems to be higher in times [page 162] of war — became a problem, the domiciliary requirements of jurisdiction, based on the laws of six states, were found to present considerable inconvenience and required legislative intervention. The Matrimonial Causes (Expeditionary Forces) Act 1919 (Cth) gave effect to an Imperial Act relaxing the restrictions imposed by the doctrine of domicile on proceedings in matrimonial causes. In the Matrimonial Causes Act 1945 (Cth), the Commonwealth widened the jurisdiction of state courts in matrimonial causes. This was to enable deserted wives (who had lost their Australian domicile and had acquired the domicile of their husbands, while still resident in Australia) to sue in the courts of their residence; their husbands in many cases having disappeared to the overseas countries from which they had come.25 In 1955, a further

extension took place when the requirement of domicile to found jurisdiction was further relaxed in relation to women, and the criterion of three years’ residence was substituted for it.26 These Acts did not, however, effect any permanent changes in Australian marriage and divorce laws. In 1959, demands for a uniform divorce law culminated in the enactment of the Matrimonial Causes Act. In the Marriage Act, the Commonwealth sought to regulate the legal aspects of marriage and the legal relationships that it brought into being in its various aspects. These Acts superseded the laws of the states and formulated one uniform Commonwealth law on marriage and divorce.

The marriage power 4.11 In using the expression ‘matrimonial causes’, the Constitution did not spell out the precise meaning and extent of that phrase; it has always been a matter of statutory interpretation, which has varied from time to time. The meaning of ‘marriage’ is less obscure. Until more recent times, the definition of marriage for the purposes of marriage law had been settled in the UK and in countries that derived their laws from that country as ‘the union of one man and one woman, for life to the exclusion of all others’.27 Yet in the constitutional context, this simple expression has presented problems. In conferring upon the Commonwealth power to make laws with respect simply to ‘marriage’, what was the extent of that power? Did marriage connote simply the act of marrying, or did it bring with it a power to regulate the status that was created by that act? And if so, how far did the Commonwealth power reach in regulating the legal incidents and consequences of that act? 4.12

These questions came before the High Court in in 1962.

The question that arose concerned Pt VI (ss 89–91 and 94) of the Marriage Act. It required a detailed [page 163] discussion of those four sections. Section 89 provided for the legitimation of an ex-nuptial child by the subsequent marriage of the child’s parents. Section 90 extended that principle further by making it applicable even where the subsequent marriage of the parents took place outside Australia and the father was not domiciled in Australia at the time. In such circumstances, the marriage had the same effect of legitimating the child, even though the laws of the father’s domicile did not recognise such a legitimating effect. Section 91 embodied the concept of the ‘putative marriage’. It provided that the child of a void marriage is deemed to be legitimate if at the time of the conception of the child, or of the ceremony of marriage — whichever was the later — either party believed on reasonable grounds that the marriage was validly entered into. Last, s 94 made the crime of bigamy an offence under the Marriage Act, a Commonwealth law. It had previously been an offence under the laws of the states (and, interestingly, bigamy continues to remain a crime under state law, except in Tasmania and Western Australia where the state provision has been removed).28 The Marriage Act case raised squarely the question of how far the Commonwealth could go in legislating in relation to marriage. In separate judgments, discussed further below, ss 89–91 were held by a majority of the High Court (Kitto, Taylor, Menzies and Owen JJ) to be a valid exercise of the power to legislate with respect to marriage.29 The High Court was unanimous, however, in finding that s 94 was a valid exercise of ‘marriage power’. 4.13 The main interest of the decision lies in the court’s discussion of the marriage power and the extent of its operation in

areas of private law. The High Court distinguished between three aspects, or degrees, of the marriage power. In the first place, there was what Taylor J called the ‘forms and requisites’ of marriage.30 This primary aspect covered solemnisation of marriage, the ‘conditions and circumstances in which men and women might enter into matrimony, the method of doing so and the consequences of incapacities, impediments and informalities’. Consequently, it dealt with who might be married and how. Rules concerning these matters, and also divorce from matrimonial obligations and dissolution of the bonds of matrimony, constitute marriage law in a primary sense. It is, according to Windeyer J, ‘a body of rules relating to the creation or the termination of the status of husband and wife, as distinct from the legal attributes, incidents and consequences that attach and give a substance to that status’.31 [page 164] It does not seem arguable to suggest that these primary aspects of marriage are not covered by the marriage power, for if they are not, what is? Even Dixon CJ, who took the narrowest view of the power, held them to be included in it. 4.14 The second aspect seems only slightly less closely connected with the power. Quick and Garran recognised two groups of laws falling within the subject of marriage. The first was marriage in this primary sense. The second included ‘the consequences of the relation, including the status of the married parties, their mutual rights and obligations, the legitimacy of children and their civil rights’.32 This view found support in some of the judgments in the Marriage Act case. Taylor J stated: I feel bound to regard the paragraph as justification for the enactment of any law with respect to marriage considered as an institution … It extends not only to laws defining and regulating the respective rights duties and obligations of the parties

inter se. Indeed, the full measure of the legal effect of a marriage can be determined only by reference to the rights duties and obligations, which, by law, arise out of the relationship and I can see no reason why a constitutional power to make laws with respect to the subject matter of ‘marriage’ should not be thought to authorise laws defining or modifying and re-defining the legal incidents of the relationship.33

Menzies J’s views were expressed even more strongly: I do not think the existence of s 51(xxii) requires the implication that s 51(xxi) is limited to determining who may marry and the forms and ceremonies of marriage. The power must extend to the mutual rights and obligations of spouses unless it be that state law could deprive marriage according to Commonwealth law of any legal significance except for Commonwealth purposes (eg divorce, income tax, estate duty, etc). It would be quite unrealistic to construe s 51(xxi) and (xxii) together as according power to provide for the vows with which marriage shall begin and the grounds for divorce to bring it to an end but as having nothing to do with the obligations one to another of those who marry, the disregard of which obligations is the basis for divorce.34

Menzies J accordingly thought that ss 89 and 90 were laws ‘with respect to marriage because they relate to the effect of marriage upon the relationship of those who marry and their children’.35 [page 165] Windeyer J also agreed that Commonwealth law could extend: … at least to the personal relationships that are the consequences of marriage — cohabitation, conjugal society, all that is meant by consortium, the mutual society, help and comfort that the one ought to have of the other. These are of the very nature of marriage.36

4.15 It was with the third aspect of the marriage power that greater doubts arose. These concerned the wider consequences of marriage on the rights and obligations of the spouses, of which Harrison Moore said: Whether the marriage power goes further and enables the Commonwealth Parliament to legislate as to the effect of marriage on the property of the spouses, their contractual and tortious responsibility, and their rights of succession inter se may be doubted.37

It is in matters of property and succession laws that these remoter consequences of marriage are chiefly called into question. The Marriage Act case was not, of course, concerned with these particular aspects. It was concerned primarily with legitimacy — a subject that is more intimately connected with family law because of the conceptual connection between the two. The concept of the legitimacy or illegitimacy of children necessarily involves, and depends for its existence on, the concept of marriage. No such close and necessary connection existed with regard to property rights of spouses between themselves. Of course, legislation both as to divorce and concerning the property of married persons may be made to depend on different criteria connected with marriage. However, the constitutional question concerned the extent to which the Commonwealth can select these criteria and annex legal consequences to them. The same consideration applies in relation to both the maintenance of spouses and parenting disputes over the children of the marriage. However, in relation to property, the traditional view of the law meant that there was reluctance to go as far. Property rights were traditionally regarded as sacrosanct, and any interference with them was regarded as a matter for state legislation. Since there was no necessary legal connection between marriage and the distribution of property — unlike the maintenance of a spouse which was affected by the legal duty of support, now embodied in s 72 of the FLA — the mere invocation of the marriage power may not, of itself, have been thought to suffice to vest in the Commonwealth a power to enter into this area of private rights. [page 166] 4.16 At all events, the dicta in the Marriage Act case tended against the Commonwealth power in matters of property. Kitto J raised the question, but expressly declined to answer it.38

Windeyer J regarded it as ‘very doubtful’.39 There are dicta in Taylor J’s judgment that may be thought to allow such an extension.40 However, he spoke about ‘rights and duties and obligations of the parties inter se’, and ‘a power to modify, and redefine the legal incidents of the relationship’.41 These dicta do not go beyond personal rights and obligations. In relation to legitimacy and legitimation, the majority view really amounted to this: that the Commonwealth could alter the status of legitimacy under the power with respect to marriage, but that this left untouched the power of the states to annex legal consequences to that status (eg in matters of property), or to discriminate in this respect between persons born legitimate and those ‘federally legitimated’. Translated into matrimonial property law, property rights and interests of spouses and children are not of the ‘essence of the estate of matrimony’.42 4.17 As regards both the first and second classes of matters arguably within the concept of ‘marriage’ in s 51(xxi), it was the unanimous view of the High Court in the Marriage Act case that these fell squarely within the Commonwealth marriage power. It is a view that is fully in line with early authorities. The questions on which the High Court disagreed did not come within either class. Indeed, it was argued for the state of Victoria that the proper concern of the marriage power was just with the two classes already mentioned, namely solemnisation leading to the formation of marriage, and the status arising out of marriage. The objection to s 89 was that it was a law with respect to legitimation rather than with respect to marriage. Since legitimation means little in itself, it is necessary to look at the consequences to which it gives rise. When these are examined, it becomes clear that they are chiefly in the field of state legislative competence. It was argued that the prima facie effect of s 89 was to bring about major alterations to state laws of succession, which must be taken to be contrary to the intentions of the states. These, however, by virtue of s 109 of the

Constitution, must give way to Commonwealth laws with which they are inconsistent. Consequently, the Commonwealth would, in fact, by a circuitous route, be altering state laws which, according to Dixon CJ, it would not otherwise have the power to do.43 As the objection was put by McTiernan J, the effect of s 89 would be to confer the status of legitimacy by force of the section, not by the marriage of the parents.44 [page 167] The majority view was less rigid in that it recognised the duality of characteristics of the impugned law. The law was one with respect to legitimation, but it was also a law with respect to ‘the step to which a legitimating effect is given’.45 Nor should the question of dual characterisation be pursued too far. Although it was a law with respect to legitimation, s 89 could not be said to be a law with respect to descent or inheritance. Both these areas were matters within state power and, therefore, outside Commonwealth power. The reason it was not a law with respect to those areas was that it did not, of its own force, determine the devolution of property.46 It only appeared to have that effect because such consequences were annexed to the status of legitimacy by state law. The majority accepted the argument of the Commonwealth that it was open to a state to avoid these consequences by altering the rules of inheritance. A state could thus exclude a child who had been legitimated by s 89 from inheriting, by providing that such a child remained illegitimate for the purposes of state inheritance law. This argument did not commend itself to Dixon CJ, who thought that to discriminate between ‘the legitimate and … those federally legitimated’ would involve a very restrictive and unnatural interpretation of ss 89 and 91.47 4.18

As for s 91 — which purported to annex the status (and

consequences) of legitimacy to certain void marriages on the basis of a belief by at least one of the parties in the validity of such a marriage (called a ‘putative marriage’) — Dixon CJ left little doubt that he regarded it as, in effect, a contradiction in terms to recognise a law under the marriage power, which was concerned with something manifestly not a marriage at all. However, as is shown, for example, in the judgments of Windeyer J and of McTiernan J, the concept of the putative marriage was once well known, and it was merely being resurrected by s 91. Kitto J sums the matter up simply and clearly: Thus the Parliament, having rendered void five classes of marriage which otherwise would have been valid, has by s 91 done no more than add an ancillary provision, limiting the legal consequences of the avoidance.48

4.19 For a ‘marriage’ to come within s 91 of the Marriage Act, there must first have been a ceremony in the form of a marriage. It must have been intended to be effective by at least one of the parties. The very question as to whether a marriage is void involves a consideration of the Commonwealth law that prescribes the conditions for a valid marriage, as well as of s 18 of the Matrimonial Causes Act that renders the marriage void. Looking at the matter in another way, s 91 was a law that merely limited the legal consequences of the invalidity of the marriage [page 168] and was thus plainly an ancillary provision to the substantive questions of validity and avoidance. 4.20 While the Marriage Act case saw the beginning of a gradual widening of the marriage power, that process remained hesitant and at times almost reluctant. In the 1976 case of Russell v Russell49 (see 4.32), the question was debated as to whether proceedings between the parties to a marriage with respect to the property of either or both were authorised by the power. The

majority held that the marriage power encompassed both the creation of rights generally arising out of the marriage relationship and the enforcement of those rights.50 However, the reference to property as to which proceedings could be brought, could not be without limitations. The provision as it stood in Russell v Russell, which purported to relate to all property of the parties, was held to be invalid because it would have travelled beyond the marriage relationship and purported to include property rights that were not ‘grounded in that relationship’.51 However, where proceedings in relation to property arising out of the marriage relationship were instituted between the parties, the marriage power was also extended to enable those proceedings to be continued after a party’s death by or against that party’s personal representative.52

The matrimonial causes power 4.21 What is the meaning of ‘matrimonial cause’ in s 51(xxii) of the Constitution? Do the words conveying the power necessarily require interpretation in the light of the meaning that they bore in 1901, when the Constitution was enacted? Or is it possible that developing concepts and changing social conditions may have affected them? The first comprehensive enactment by the Commonwealth to regulate matrimonial causes was the Matrimonial Causes Act. The definitions of ‘matrimonial cause’ in that Act differed from those first enacted in the FLA and they, in turn, were altered on several subsequent occasions. 4.22 The question as to the extent to which the definition of ‘matrimonial cause’ falls within the constitutional power of the Commonwealth has often been considered by the High Court of Australia. The classic answer is that while the connotation or meaning of a given term in the Constitution remains fixed as in 1901, its denotation or extent of application will change according to changing

[page 169] conditions. This view has been expressed over the years and applied in varying degrees.53 In the 1964 case of Lansell v Lansell,54 Menzies J said: It is right, in construing a grant of power, to ascertain as a starting point at least what the words used in the Constitution meant in 1901 when the Constitution was enacted, but it is quite another thing to attempt to confine the legislative power of the Parliament to making the kind of laws then in existence.55

Similarly, Taylor J said: ‘although the meaning of these terms does not change, their denotation must extend as new concepts develop.’56 By the use of this somewhat sophistical reasoning, the High Court seems to want to have its cake and eat it too. Dealing specifically with the argument that in exercising a power assigned to it the Commonwealth must not go beyond the bounds of the power as delineated or understood in 1900, Windeyer J said: ‘The usage of 1900 gives us the central type; it does not give us the circumference of the power.’57 Clearly, then, whichever way one looks at it, a consideration of the meaning of ‘matrimonial cause’ in 1901 will be relevant as a starting point for the discussion of ‘matrimonial cause’ in current times. The modern starting point in a consideration of the meaning of this expression must be the UK Divorce and Matrimonial Causes Act 1857. This included divorce, nullity, judicial separation, jactitation58 and restitution of conjugal rights.59 Standard works of reference accordingly defined ‘matrimonial cause’ in those terms.60 Yet there was nothing sacrosanct in that definition. Seeking to discover the ‘outside limits’ rather than the ‘minimum content’ of a constitutional power,61 it will be not only legitimate, but also necessary to refer to the ‘nature of the subject’ rather than to any artificial limitation derived from a law passed in 1857.

[page 170] 4.23 It has been said that a ‘cause’ is not a technical word signifying one kind of action or another. It is a causa jurisdictionis: any suit, action, matter or other similar proceeding competently brought before and litigated in a particular court.62 ‘Matter’ has been held to mean not simply ‘legal proceeding’, but the subject matter for determination in a legal proceeding.63 ‘Cause’ under the Judiciary Act 1903 (Cth) s 2 includes any suit, with ‘suit’ including any ‘action or original proceeding between parties’. A ‘matrimonial cause’ in this sense must therefore refer to legal proceedings arising out of, or concerning, a matrimonial relationship. 4.24 The Commonwealth Constitution did not spell out the meaning of ‘matrimonial causes’ in s 51(xxii). The Commonwealth first legislated substantively under this head in s 5(1) of the Matrimonial Causes Act, as follows: ‘matrimonial cause’ means — (a) proceedings for a decree of — (i) dissolution of marriage; (ii nullity of marriage; (iii) judicial separation; (iv) restitution of conjugal rights; or (v) jactitation of marriage; (b) proceedings for a declaration of the validity of the dissolution or annulment of a marriage by a decree or otherwise of a decree of judicial separation, or for a declaration of the continued operation of a decree of judicial separation, or for an order discharging a decree of judicial separation; (c) proceedings with respect to the maintenance of a party to the proceedings, settlements, damages in respect of adultery, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act; (d) any other proceedings (including proceedings with respect to the enforcement

of a decree, the service of process or costs) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the last three preceding paragraphs, including proceedings of such a kind pending, at, or completed before, the commencement of this Act; or (e) proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, or proceedings in relation to proceedings seeking such leave.

[page 171] This definition of ‘matrimonial cause’ was by no means as comprehensive as it may have seemed. It included, as principal relief, divorce, nullity and the other forms of action in para (a).64 However declarations of validity, while not strictly proceedings for principal relief, were treated as such for the purposes of s 89 of the Act, enabling the court to make certain ancillary orders in relation to a petition for a declaration of validity that had been dismissed.65 4.25 The coverage of matrimonial causes under the Matrimonial Causes Act manifestly fell short of the possible coverage available to the Commonwealth under s 51(xxii) of the Constitution. The result of this incomplete coverage meant important areas were left outside its scope, notably the maintenance of wives and children, custody of children (except in relation to divorce or other ‘principal proceedings’) and guardianship of such children. In the other area of ancillary relief, concerning matrimonial property, there was again a bifurcation of jurisdiction. Jurisdiction was assumed under federal law where proceedings were in relation to proceedings for principal relief, but remained under state law where this was not the case. ‘Grey areas’ continued to exist; for instance, as to whether Commonwealth law could deal with matrimonial property matters where a matrimonial cause for principal relief had come into existence, but had been disposed of prior to the litigation of the property questions.66

4.26 The question in the 1964 case of Lansell v Lansell67 was whether there was power to order settlements of matrimonial property under the matrimonial causes power, and whether s 86(1) of the Matrimonial Causes Act which purportedly conferred such a power was valid and, if so, to what extent. The parties had been married, but their marriage had been dissolved in 1948 under the Marriage Act 1928 (Vic), which at that time governed divorce in Victoria. The fact that that divorce had taken place some 14 years before the proceedings in question was one of the matters in issue. By its terms, the Matrimonial Causes Act applied to such proceedings (‘proceedings with respect to … settlements … being proceedings in relation to concurrent, pending or completed proceedings’ (emphasis added)).68 The High Court held that the matrimonial causes power extended to such proceedings. Kitto J said: It is obvious that where any of these forms of principal relief is granted … a readjustment of property rights of the spouses may be required if consequential

[page 172] injustice to one or both of the spouses and to the children is not to result. The making of a settlement may be a way of carrying to completion, or nearer to completion, the task of dealing fully with the relationship which is the subject of the matrimonial cause. Orders with respect to maintenance are familiar as one means of dealing with an economic situation arising from the granting of substantive matrimonial relief. Orders varying ante-nuptial or post-nuptial settlements, as provided for by s 86(2) provide another example …69

In relation to both property and maintenance, Kitto J said they were: … relief incidental to, because consequential upon the dissolution of a marriage or the granting of one of the other forms of relief which identify a cause as a matrimonial cause in the ordinary English sense of the expression.70

4.27 The close relationship between maintenance and property orders, as forms of relief arising out of marriage and its dissolution,

was further stressed in the 1967 case of Sanders v Sanders.71 The view taken by the High Court of these two forms of relief was that they were very closely interlinked. They were said to overlap, rather than be mutually exclusive.72 Consequently, the property of a party could be settled on the other party in order to provide maintenance for that other party. These developments were to lead the way towards a more comprehensive view as to the property implications of marriage and divorce, and towards a more plenary view of Commonwealth power in family matters.

The FLA 4.28 The background to the enactment of the FLA is discussed at 1.40–1.43. When the FLA came to be enacted, it appeared that a wide approach was to be taken, conformably with the dicta referred to above. It was the intention of the framers of the new legislation to exercise as extensive a power as the Constitution conferred on the Commonwealth. In particular, the expedient of vesting federal jurisdiction in state Supreme Courts (see 1.38) was to be abolished with the setting up of a specialist federal court, the Family Court of Australia. The exercise of federal jurisdiction over matrimonial causes by the Family Court would be based on the Commonwealth’s constitutional power. In conferring this jurisdiction, the FLA definition of ‘matrimonial cause’ would determine the extent of the Family Court’s jurisdiction. [page 173] 4.29 The original definition of matrimonial cause in s 4 of the Act read as follows: ‘matrimonial cause’ means — (a) proceedings between the parties to a marriage for a decree of —

(i) dissolution of marriage; or (ii) nullity of marriage; (b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise; (c) proceedings with respect to — (i) the maintenance of one of the parties to a marriage; (ii) the property of the parties to a marriage or of either of them; or (iii) the custody, guardianship or maintenance of, or access to, a child of a marriage; (d) proceedings between the parties to a marriage for the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; (e) proceedings for an order or injunction in circumstances arising out of a marital relationship; or (f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (e), including proceedings of such a kind pending at, or completed before, the commencement of this Act.

When one compares this definition with the definition in the Matrimonial Causes Act (see 4.24), it is apparent that some significant changes were made. There is an assumption of power in para (c) to deal with the property of parties to a marriage, which was lacking in the Matrimonial Causes Act in which proceedings for a settlement, for example, were defined as being matrimonial causes only if they were in relation to concurrent, pending or completed proceedings for principal relief: s 5(1)(c).73 This was coupled with the power to make declarations of interests in property of the parties (FLA s 78) and to alter their interests in such property: FLA s 79. The way seemed open, in view of the marriage power, to deal with the property relationships of the parties to a marriage, even in the absence of any proceedings, antecedent or concurrent, for principal relief (eg divorce or nullity). Under the matrimonial causes power and without the existence of any proceedings in the nature of a matrimonial cause, such a step would have still fallen short of the creation of a regime of matrimonial property

involving property rights and liabilities arising in consequence of marriage. However, even this degree of legislative intervention was at first rejected when the question came before the High Court quite soon after the FLA came into operation: see 4.32. [page 174] 4.30 The expression ‘child of the marriage’ further defined and amplified that phrase as it was used in the definition of ‘matrimonial cause’. It was dealt with in s 5 of the Act. As originally enacted in the FLA, this read as follows: (1) For the purposes of the application of this Act in relation to a marriage — (a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other; (b) a child of the husband and wife born before the marriage; and (c) a child of either the husband or wife (including an ex-nuptial child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife, shall be deemed to be a child of the marriage, and a child of the husband and wife (including a child born before the marriage) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.

As with the definition of ‘matrimonial cause’, here again the Act was designed to provide as wide a coverage of family law as possible. This was intended to overcome constitutional restrictions to which any comprehensive family law legislation by the Commonwealth was obviously subject. The inclusion of s 5(1)(c) was a clear attempt to widen the scope of the FLA so as to deal with families as comprehensively as possible; in particular, blended families with step-children. The concept ‘child of the marriage’ was obviously modelled on the ‘child of the family’, which was a concept well known in the laws of the states, as well as in UK law. This may be compared with the

now repealed s 3(1) of the Maintenance Act 1965 (Vic), where ‘child of the marriage’ was defined as ‘any child of either party who has been accepted as one of the family by the other party’. It was defined even more widely in the Matrimonial Proceedings and Property Act 1970 (UK) s 27(1)(b) as ‘any other child … who has been treated by both parties as a child of their family’. Since the word ‘family’ is not a concept known to the Constitution, the expression ‘child of the marriage’ was presumably intended to bring this extension to the reach of the FLA within the range of Commonwealth power. This bold attempt, however, did not survive long.

The first challenge to the FLA: Russell v Russell 4.31 One of the by-products of the Commonwealth taking control, so far as it could, of family law was a series of constitutional challenges that were to engage the attention of the High Court for years to come. Looking at the matter four decades later, it is evident that the result has been a clarification of the federal/state boundary lines of legislative power. [page 175] In the wake of the challenges has come also the deliberate widening of federal jurisdiction; first by the development of accrued jurisdiction, then by the referral of power with respect to children by the states to the Commonwealth, and last by crossvesting legislation subsequently held to be constitutionally flawed. These developments are discussed below. 4.32 A constitutional challenge to this assumption of power by the Commonwealth was not long in coming in the twin cases of Russell v Russell; Farrelly v Farrelly.74 A number of issues were raised. The cases involved a discussion of both the marriage and the

matrimonial causes powers. The FLA showed an intention to confer power to deal with orders for maintenance, property and custody where such an application was unrelated to any proceedings for divorce or nullity. If this was not a matrimonial cause, was it a law related to marriage? The section clearly referred to the property of the parties to a marriage. The issues in Russell v Russell were relatively simple and seemed to concern matters of procedure. They were whether the Commonwealth had power to prescribe to state courts exercising jurisdiction under the FLA that all proceedings under the Act were to be heard in closed court, as was then prescribed by s 97(1), and that neither judges nor counsel were to wear robes, as was then prescribed by s 97(4). Of course, the Commonwealth had the power to issue such requirements to its own courts, such as the Family Court of Australia. However under the Act, jurisdiction was initially also vested in state Supreme Courts and courts of summary jurisdiction.75 Additionally, jurisdiction could be vested in state family courts, where such courts existed.76 The vesting of federal jurisdiction in state courts is authorised by ss 71 and 77(iii) of the Constitution. It was an expedient that had worked well in the past when the volume of federal judicial work was comparatively small. In such circumstances, it was considered uneconomical to create parallel judicial structures to those of the states in order to deal with this federal work, particularly in the smaller states. Consequently, during the whole of the life of the Matrimonial Causes Act 1959 (Cth), the jurisdiction created by that Act was dealt with by the Supreme Courts of the several states and territories on which jurisdiction had been conferred by s 23 of that Act. However, the jurisdiction of the Supreme Courts of the states and territories under the FLA was terminated by proclamation of the Governor-General on 27 May 1976,77 pursuant to s 40(3) of the Act with effect from 1 June 1976.

Section 97 of the FLA was expressed to apply to the Family Court of Australia and to any other courts exercising jurisdiction under the Act. This attempted extension to state courts met with considerable opposition. In Russell v Russell, the issue of whether the Commonwealth could prescribe to a state court how it was [page 176] to conduct its business was raised for the determination of the High Court. Of the five justices who sat (Barwick CJ, Gibbs, Stephen, Mason and Jacobs JJ), a majority (Barwick CJ, Gibbs and Stephen JJ) held that the Commonwealth did not have power to prescribe to state courts that they were to sit in closed court. At the same time, a majority (Stephen, Mason and Jacobs JJ) also held that the requirement against robing was valid. 4.33 This difference of opinion lay in the way these requirements were viewed. In investing state courts with federal jurisdiction, the Commonwealth must take such a court ‘as it exists’.78 In other words, the Commonwealth has no power to effect any transformation in a state court which is exercising federal jurisdiction, or to attach officers to such a court.79 On the other hand, the Commonwealth can prescribe matters of practice and procedure in relation to the discharge of the federal jurisdiction vested in the state court. The differences of judicial opinion in Russell v Russell really revolved around the question whether the matters laid down in s 97 were of such a kind. The majority who upheld the robing issue viewed it as a mere matter of practice and procedure. So too did the minority of two justices who would have upheld the requirement of closed courts. However, Stephen J, who held the balance of voting on this issue, regarded the question of ‘closed as against open courts’ as fundamental to the nature of Australian courts of law. In his view, to require a state court to sit as a closed court would have

effectively transformed it into a different kind of tribunal.80 Consequently, he opposed the provision as an attempt by the Commonwealth to transform state courts, which he held to be unconstitutional. 4.34 The questions in Farrelly v Farrelly were more fundamental and went to the issue of Commonwealth/state powers. The case arose out of an application for custody under the Guardianship of Infants Act 1940 (SA). An ex parte order was made under that Act by the Supreme Court of South Australia. The respondent then applied for that order to be discharged, and for an order in his favour. Under the FLA, which had meanwhile come into effect, ‘proceedings with respect to the custody, guardianship or maintenance of, or access to, a child of the marriage’ were defined as being a matrimonial cause.81 Unlike the Matrimonial Causes Act 1959 (Cth), the FLA assumed power over such matters, irrespective of whether proceedings for principal relief (ie divorce, nullity or declarations of validity) had been instituted. In Farrelly v Farrelly, they had not. Nevertheless, if the assumption of jurisdiction in this class of case was valid, the effect of s 9(4) of the Act was that pending proceedings of this kind, [page 177] which had been instituted under state law, could be continued under the FLA. That was the respondent’s application in Farrelly v Farrelly. The question then arose whether the assumption of jurisdiction under the FLA was valid in relation to this kind of case. If it was not, then not only would the respondent have to resort to the South Australian Act, but the provisions of the FLA which purported to assume that jurisdiction must be invalid. The question was of fundamental importance, and until it was

disposed of, the FLA and its entire machinery were in danger of grinding to a halt. 4.35 These questions before the court involved a consideration as to whether the Commonwealth in its assumption of jurisdiction in respect of ‘matrimonial cause’ as defined in s 4(1) of the Act, and in relation to a ‘child of the marriage’ as defined in s 5 of the Act, had acted within its constitutional powers in relation to these subject matters. The reference in para (c)(iii) of the definition of ‘matrimonial cause’ in s 4(1) to a ‘child of a marriage’ further related to the definition of the latter concept in s 5(1) of the Act. 4.36 It was held by a majority (Stephen, Mason and Jacobs JJ) that the statements in para (c) of the definition of matrimonial cause and in s 5(1) of the child of a marriage were too widely drawn and, as expressed, exceeded the power of the Commonwealth. In relation to all three classes of ancillary relief in para (c), the majority, against the dissent of Barwick CJ and Gibbs J, held that the Commonwealth had power to create a jurisdiction with respect to maintenance, property and custody, where the proceedings were not ancillary to proceedings for principal relief. The judgment of Mason J assumes special significance since Stephen J expressly agreed with it on this point. Jacobs J took a wider view, but for the purpose of ascertaining the ratio decidendi, the minimum area of judicial agreement must be looked to. 4.37 Mason J approached the question by considering, first, whether the matrimonial causes power of the Commonwealth (s 51(xxii) of the Constitution) authorised the legislation. Due to the matters associated with the conjunction of the words ‘divorce and matrimonial causes’, Mason J took the view that the meaning to be given to the expression ‘matrimonial cause’ was not as broad as it might otherwise have been. Specifically, the reference to ‘custody’ in placitum (xxii) suggested to him that ‘matrimonial cause’ itself might not have included custody. He also drew attention to the fact that the decision in Lansell v

Lansell (which had affirmed the validity of s 86 of the Matrimonial Causes Act) proceeded on the narrow ground that the power which it conferred on the court to make a settlement of the property of the parties to a marriage was exercisable only by way of ancillary relief in proceedings for dissolution of marriage or some other form of principal relief. Consequently, the jurisdiction conferred by s 39 of the FLA to deal with matrimonial causes as defined by s 4(1) — namely ‘maintenance, [page 178] property settlements, guardianship, custody and access, instituted not by way of ancillary relief but independently and separately from proceedings for annulment or dissolution of marriage’ — went beyond what was authorised by s 51(xxii) of the Constitution.82 However, having decided that the conferral of power as to these matters exceeded the matrimonial causes power, Mason J then examined the question whether any of them could be saved by being brought under the marriage power in s 51(xxi) of the Constitution. He referred back to the Marriage Act case83 (see 4.11–4.20), in which the High Court had rejected the notion that the power was confined to the celebration of marriage. According to his Honour: Once this step is taken it is obvious that the power extends to the institution of marriage, to the condition or state of being married and … to the definition of the respective rights, duties and obligations of the parties arising out of or in consequence of marriage … Moreover … it will extend to the enforcement of the rights, duties and obligations thereby created …84

Mason J accordingly concluded that ‘the marriage power enabled the Parliament to provide for the enforcement of such rights, duties and obligations as may be created in exercise of the marriage power’.85 But if the provisions were to be saved by reference to the

marriage power in this way, the proceedings must be between the parties whose marriage gave rise to those rights and duties. As para (c) of the definition of matrimonial cause was worded, it was in terms unlimited as to parties, and in this it went beyond the marriage power. The same objection also applied to paras (e) and (f). It did not apply to paras (a) and (d), which were expressed to relate to proceedings between the parties to a marriage. 4.38 This reasoning would have meant the invalidation of paras (c), (e) and (f), had it not been for the provisions of s 15A of the Acts Interpretation Act 1901 (Cth). That section allows the ‘reading down’ of a law that otherwise exceeds the legislative power of the Commonwealth. This means that the law may be read in a more limited sense that is within power, provided that the terms of the law supply a test or standard allowing a more limited application. According to Latham CJ in the 1948 decision of Pidoto v Victoria:86 In such a case the subject matter of the legislation itself is such as to provide a test for limiting the law by construction so as to treat it as applying only to

[page 179] that part of a definite subject matter which is within power and with which Parliament clearly intended to deal so far as it could lawfully do so.87

Applying that test, Mason J found that parliament, by providing for the exercise of jurisdiction in the matters referred to in paras (c), (d), (e) and (f) independently of proceedings for principal relief, had intended to exercise the marriage power. Accordingly, as to all of these, Mason J held that they could be so read down as to be valid if they related to proceedings between the parties to a marriage. However, two further restrictions had to be made. As regards para (c)(ii), which referred to the property of either party to a marriage, ‘presumably comprehending any property however and whensoever acquired’, there was nothing that related such

property to the marriage of the parties. The only way this provision could be saved was by reading it down by reference to the matrimonial causes power and treating it, in conjunction with s 39 of the Act, as conferring jurisdiction to grant ancillary relief in proceedings for principal relief. 4.39 The decision saved the Act, contrary to the expectations of some. Regrettably, it left some gaps and thus increased still further, for the time being, the fragmentation of Australian family law caused by the terms of the Commonwealth Constitution.

The effects of Russell v Russell 4.40 The immediate result of Russell v Russell was the amendment of the FLA so as to give effect to the inroads made on it by the decision. The Family Law Amendment Act 1976 (Cth) was assented to on 8 June 1976. The most important amendment was in the definition of ‘matrimonial cause’. The changes made to paras (c) and (e) reflect the decision in Russell v Russell. After the amendment, the relevant paragraphs of the definition read as follows: (c) proceedings between the parties to a marriage with respect to — (i) the maintenance of one of the parties to the marriage; or (ii) the custody, guardianship or maintenance of, or access to, a child of the marriage; (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings in relation to concurrent, pending or completed proceedings for principal relief between those parties; (cb) proceedings by or on behalf of a child of a marriage against one or both of the parties to the marriage with respect to the maintenance of the child; … (e) proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship.

[page 180]

4.41 The definition of ‘child of a marriage’ in s 5(1) was amended to remove the invalidated para (c) from the general ambit of the section. The broader class of children was retained to apply to s 63 of the Act: see now s 55A, discussed at 6.97–6.102. The concept of the ‘child of the marriage’ was to be the subject of a considerable amount of subsequent discussion and litigation over the coming decade. The referral of legislative power by the states to the Commonwealth in relation to ex-nuptial children (see 4.90) was to overcome many of the difficulties relating to children arising from the division of power between the states and the Commonwealth marked out by the matrimonial causes and marriage powers. 4.42 As a result of the amendments to the definition of ‘matrimonial cause’, there could be no proceedings relating to property, maintenance, custody and injunctions that were not between the parties to a marriage, or related to such proceedings. Property proceedings also had to be related to proceedings for principal relief; that is, they had to be in relation to such proceedings that were concurrent, pending or completed. This solution, as regards matrimonial property, came down on the side of caution and sought to avoid the risk of a major confrontation between the states and the Commonwealth as to their respective legislative powers in this sensitive area. 4.43 Such a conservative approach did nothing to minimise the problems inherent in the constitutional structure of Australian family law, nor did it avoid the jurisdictional pitfalls that such a structure was bound to invite. The Joint Select Committee Report in 1980 proposed among other things that the property provisions of the Act be widened by relating them to the marriage power (instead of leaving them confined to the matrimonial causes power). The Family Law Amendment Act 1983 (Cth) implemented that recommendation by extending the definition of ‘matrimonial cause’ in s 4(1)(ca)(i) to ‘proceedings arising out of the marital relationship’.

4.44 At the time of Russell v Russell, it may have seemed prudent to proceed as cautiously as was the case in restricting ‘matrimonial cause’, and to reduce the exercise of Commonwealth power, although there were dicta in that case tending to suggest that perhaps the restrictions need not have gone so far. In Russell v Russell, Barwick CJ put forward the view in hypothetical terms that ‘a system of communal property between spouses might possibly be erected as a consequence of the act of marriage …’.88 But he also took the view that, if so, such a power did not of itself extend to the creation of a jurisdiction to enforce those rights and duties. Nor would such an assumption of legislative power be justified either by the exercise of the incidental power in s 51(xxxix) of the Constitution, and ‘nor is it wrapt up as an incident and contained within the constitutional topic [page 181] of “marriage” itself’.89 His view was that the enforcement of such rights and duties was possibly a matter for the matrimonial causes power in s 51(xxii) of the Constitution. The deficiency in the FLA to deal with that power was, in his view, that ‘in the Act, it is sought to create such a jurisdiction as to property in which no interest is derived from the act of marriage’.90 In this view, he was in a minority. 4.45 Mason J (with whom Stephen J agreed) went further than the Chief Justice. He took the view that the marriage power included not only ‘the definition of the respective rights, duties and obligations of the parties arising out of or in consequence of marriage’, but also the ‘enforcement of the rights, duties and obligations thereby created without any resort to s 51(xxxix)’.91 This view was clearly acted on in Fisher v Fisher.92 But like Barwick CJ, Mason J held that para (c)(ii) was too widely drawn, ‘presumably comprehending any property howsoever and

whensoever acquired’.93 Consequently, para (c)(ii) could not be read down by reference to the marriage power. No amendment was made to para (f) in the definition of matrimonial cause although, as has previously been discussed, it was among the paragraphs that had gone too far, because it would have included proceedings between parties not parties to the marriage. However, it may have been thought that this defect was derivative since para (f) relates back to paras (a)–(e), and that it was cured by amendments to those paragraphs. Since all these paragraphs now referred to proceedings between the parties to a marriage, it could be said that the necessary nexus with the constitutional power had thus been established. Proceedings within para (f) were now connected with, or derived their validity from, earlier proceedings that satisfied the requirement as to a connection with the marriage power. In addition to the marriage and the matrimonial causes powers, the incidental power under para (xxxix) of s 51 of the Constitution may also be available in an appropriate case to support matters falling within para (f). 4.46 The narrow views of the marriage power that resulted in the restrictive expressions of opinion in Russell v Russell, particularly in relation to property, continued to inform judicial decision-making. However, differing opinions on the power have been expressed, centring on the requisite closeness of the connection between the particular power in question. An instance of this conflict is the 1981 case of Gazzo v Comptroller of Stamps; Ex parte Attorney-General (Victoria),94 where the reach of the constitutional power in relation to stamp duties imposed by a [page 182] state was in question. Section 90 of the FLA purported to exempt maintenance agreements and deeds executed under it from state

stamp duties. By a 3:2 majority (Mason and Murphy JJ dissenting), the High Court held the section invalid. The dissent of Mason J is persuasive, both from a family law and a constitutional point of view, and illustrates a plenary view of a Commonwealth power. On this view, applied in subsequent cases,95 a law with a ‘sufficient’ connection with the marriage relationship falls within the marriage power. By analogy with a law creating a matrimonial property regime, his Honour said in Gazzo: The same comment may be made of a law which provides that an instrument executed by a party pursuant to a court order shall be free from all duties. If the making of the court order for the transfer of the property by the husband to the applicant constitutes a valid exercise of the marriage power or is authorised by a legislative provision which itself is within the power, I find it difficult to perceive why the power does not extend to freeing the transfer from duty. To say that the execution of a transfer in compliance with a court order adjusting the rights of the parties to the marriage relationship shall not be made the occasion for the imposition of duties is to legislate on a matter which has not only sufficient, but also a very close, connection with the marriage relationship.96

Russell v Russell was only the first of many challenges concerning the power of the Commonwealth to legislate on family relationships and to enforce such legislation. As a result of the decisions of the High Court, the extent of Commonwealth power in family law has become much better defined. In some respects, that power is less than was thought, certainly less than was intended by the framers of the FLA. What has become quite clear is that the power of the Commonwealth in family law is incomplete; in fact, there is no ‘family law power’ as such.97 The limits of Commonwealth power and the resultant fragmentation of Australian family law are revealed in a number of leading decisions. Consideration of the cases is required for an understanding of the present constitutional position of Australian family law.

The limits of federal jurisdiction Introduction

4.47 The limits of Commonwealth legislative power are principally marked out by the marriage and matrimonial causes power, discussed above, and the legislative powers referred by the states, discussed at 4.89ff. Other means by which the boundaries of federal jurisdiction have been extended are also considered later in this chapter. [page 183] The principal areas concerning children, which remained with the states after the FLA was enacted, were the adoption of children, ex-nuptial relations and child welfare. This dichotomy of jurisdiction and the absence of federal jurisdiction to make comprehensive laws with respect to the welfare of children continued to present a challenge for the family law system in Australia. This is evident from the High Court decisions concerning adoption and the limits of the welfare jurisdiction of the Family Court under s 69ZC, discussed at 4.48 and 4.56 respectively. In relation to property matters, the states retained jurisdiction over financial relations between parties to de facto relationships until that power was referred to the Commonwealth: see 4.92. As mentioned at 4.43, the FLA jurisdiction in relation to matrimonial property proceedings, over which the Commonwealth clearly has legislative power, was widened in 1983 to include proceedings ‘arising out of the marital relationship’: s 4(1)(ca)(i). There have been a number of cases concerning property proceedings in which the constitutional question of whether a law that confers jurisdiction on the Family Court is valid has been raised before the Family Court. For example, s 106B (formerly s 85) of the FLA, which allows the court to set aside transactions to defeat an existing or anticipated order of the court, was held by the Full Court in Marriage of Gould98 to be a valid law based on s 51(xxi) and (xxii) of the Constitution. More recently, ss 90AE(2) and

90AF(2) — which provide for the court to make orders binding third parties to the marriage where those rights were sufficiently connected to the division of property between the parties to the marriage — were held at first instance in Hunt v Hunt99 to be constitutionally valid. As mentioned at 15.24, 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.100 These cases and other decisions relating to the extent of the Family Court’s jurisdiction to make orders under s 79 of the Act are discussed in detail in Chapter 15.

Federal law and the adoption of children 4.48 The interaction of the federal family law and state adoption jurisdictions was examined by the High Court in the 1987 case of Re LSH; Ex parte RTF.101 The marriage of the respondent, LSH, and one of the ‘prosecutors’, JEF, was dissolved and custody of their child was granted to the mother, JEF. An order for limited access was granted to the father at first, but this later ceased. The mother then married RTF. Together, the mother and her new husband applied in the South Australian Children’s Court for an adoption order in respect of the child. The child’s father [page 184] then revived the former access proceedings and sought an injunction in the Family Court to restrain the adoption proceedings. The Family Court (McGovern J) granted the father an interlocutory injunction. The mother then appealed to the Full Court of the Family Court against the injunction. Before that appeal could be heard, however, the mother and her new husband applied to the High Court for the prerogative writs of certiorari and prohibition

against judges of the Family Court, putting the validity of the interlocutory injunction in issue. The application by the mother and her new husband was based on two grounds. They argued first that the FLA did not authorise the grant of an injunction restraining the adoption proceedings. The second ground was that to the extent that it purported to confer such a power, the Act exceeded the legislative power of the Commonwealth. 4.49 The question raised by this appeal was perhaps one of the most important and troublesome problems in the whole of the FLA, namely the delimitation of constitutional power as between state and Commonwealth as regards the ‘child of the marriage’. The broad definition originally given to that term in the FLA was an attempt to overcome the fragmentation in Australian family law that the Commonwealth faced when anxious to deal as comprehensively with children as its limited endowment of power permitted. The difficulty in Re LSH was this. If there is a child of a marriage, and the parents divorce and one subsequently remarries, then a new marriage is created. However, even if the parent who had entered the new marriage wanted to, or did, introduce the child into that marriage, the child did not, by that fact, become a child of that marriage. Following the rejection by the High Court of various attempts to cover this situation by the invention of de facto adoption so as to take the child into the new household, the weakness in the Act remained. It was only the power over legal adoption possessed by the states that could bring about the ‘transfer’, constitutionally speaking, of the child from the first marriage (into which it had been born) to the new marriage (into which it had been informally transplanted). 4.50 It is submitted that this constituted a logical anomaly. On the foregoing analysis, the child was always intended to be a ‘child of a marriage’ (emphasis added). The interposition of state

jurisdiction into this process of readjustment was an anomaly in that it took the child out of the supervision of the federal Act, and subjected it to the possibility of a different regime of rules between the two marriages. This could result in the introduction of different criteria from state to state, including variable standards in the provision of ancillary services such as counselling or child welfare facilities. The policy adopted by many courts has always been that the welfare of one child should as far as possible be overseen by the same judge or welfare worker. This was not possible under the ‘split regime’. [page 185] 4.51 The question as to the jurisdiction of the Family Court to deal with this problem had previously come before the Full Court in Marriage of Kent & Pigot.102 That decision was to the effect that the FLA provided such a power. Regrettably, this important constitutional question came before a Full High Court in Re LSH constituted of only five of the seven justices (Mason CJ, Wilson, Deane, Dawson and Gaudron JJ). The decision in Re LSH is nonetheless important, even though the referred state power in matters relating to children greatly reduces the importance of the concept ‘child of the marriage’.103 Since the reference of power legislation expressly excludes adoption as a referred power and the Commonwealth Act does not purport to assume it, the effect of the decision in Re LSH is probably academic at this stage. It is important, however, to note that the majority of the High Court opined that a law conferring jurisdiction on the Family Court to restrain — at the suit of a party to a marriage — an application to a state court for an adoption order regarding a child of that marriage by the parties to another marriage, would be valid as a law ‘with respect to’ marriage.104

Third parties and the ‘child of the marriage’ 4.52 The constitutional problems that arose in Russell v Russell105 (see 4.32) created a tension between federal and state powers that seemed likely to rein in severely the Commonwealth’s attempt to exercise a plenary jurisdiction in an area where it had been endowed with only limited powers. This would have been particularly unfortunate because the children who were caught in the middle of this power play were innocent victims of a situation that was about Commonwealth/state powers and not about the welfare of the child. 4.53 There were challenges as to the extent to which the Commonwealth could go beyond the parties to a marriage in dealing with a disposition concerning a child of the marriage. One would have thought that this is a subject that demands a liberal and non-legalistic approach because the welfare of children is not best served by a strict adherence to traditional legal rules and techniques of interpretation. Unfortunately, because of the distribution of powers under the Constitution, the power of the Commonwealth is circumscribed in this area and the content, as well as the administration, of legislation must take these limitations into account. The decisions challenging the Commonwealth’s power to deal with children involved the interpretation of s 61 of the FLA. Under that section, the Act set up a prima facie guardianship and custody regime for a child of a marriage. The [page 186] section (currently s 61C) vested these powers jointly in both parents, giving legal form to what might be regarded as the typical and desirable situation in a viable marriage relationship. The

statutory scheme is subject to any court order that might provide otherwise (eg where parties are separated or divorced). The power of the court to make orders in such a situation depended on whether it arose out of a marriage or was consequential on an order that had so arisen. Where a parent who was a party to a marriage had died or left the marriage, and third parties entered into the picture, complications set in. Three kinds of situations could exist in which the power of the Commonwealth became increasingly attenuated until it faded away altogether. These situations, all in relation to a child of a marriage, arose in proceedings first, between the parties to the marriage; second, between one of the parties to the marriage and a third party; and third, between two third parties (ie where both litigants were strangers to the marriage). 4.54 It would seem obvious that if both parties to the marriage are litigating about the child between themselves, then there is a question within the marriage power and possibly also within the matrimonial causes power. If, however, the litigation is between one party to the marriage and a third party, can it still be a matrimonial cause or arise out of the marriage? And does it make any difference if the other party to the marriage is dead or has disappeared, or merely does not seek any order? Yet one step further removed and at the other end of the constitutional spectrum is the situation where both parties to the litigation are strangers to the marriage. Should it make any difference whether there had or had not been a custody order under the FLA? 4.55 These were among the questions that were fought out in a long line of cases such as Dowal v Murray106 and Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson.107 Vitzdamm-Jones established the following propositions. First, proceedings between the parties to a marriage for the custody of a child of that marriage were a matter to be dealt with exclusively in the federal jurisdiction

under the FLA. Second, once that jurisdiction had been exercised, any further proceedings concerning the matter had to remain in the same jurisdiction so long as those proceedings were between the parties to the marriage, or between one of those parties and a third party. It was sufficient for a party to the marriage to be joined in the proceedings even though the controversy was really between other parties, as happened in St Clair v Nicholson. If, however, the proceedings did not involve either party to the marriage, the matter would have lost the essential nexus relating it to either the marriage power or the [page 187] matrimonial causes power. This made it necessary to proceed under state legislation in a state court. Third, third parties could not intervene in proceedings if the parties to those proceedings had died, or where the proceedings had been concluded. They could, however, apply under former s 61(4)(b), provided the previous custody order was not a joint one but was in favour of the deceased parent. They might also institute a matrimonial cause under para (f) of the definition of matrimonial cause, provided the application was ‘in relation to “concurrent, pending or completed” proceedings’ in the nature of a matrimonial cause within any of paras (a)–(e) of the definition. These were some of the issues dealt with in the case. Another case that picked up some of the unanswered questions in Vitzdamm-Jones was Fountain v Alexander;108 and others that followed included Cormick v Salmon,109 V v V,110 Re Cook; Ex parte C111 and Re F; Ex parte F.112 It is not proposed to discuss these developments, as most of the issues raised there are no longer of practical significance in the day-to-day administration of family law.113

Wardship and the welfare jurisdiction of the Family Court

4.56 The wardship jurisdiction of the state Supreme Courts is an old one and was conferred on them upon their establishment being derived from the Court of Chancery in the UK. It was also called the parens patriae jurisdiction or, more recently, the parental jurisdiction. It arose from the fact that the Lord Chancellor in the UK, or a Supreme Court in the Australian context, was seised of a supervisory jurisdiction to safeguard the welfare of those unable to look after themselves. This jurisdiction also extended to the disabled, particularly the mentally challenged. The wardship jurisdiction was not always exercised in Australia to the extent that it was in England. Usually, questions as to a child arise in matrimonial causes disputes and are disposed of in that jurisdiction. The wardship jurisdiction was, prior to 1959, a matter within state jurisdiction. Since that time there has been a bifurcation, resulting in a dichotomy of jurisdiction. Drawing on the marriage and matrimonial causes powers, the wardship jurisdiction became a Commonwealth matter. However, matters relating to children who were not children ‘of a marriage’ remained outside federal jurisdiction. This dichotomy of legislative power with regard to children complicated matters where a child was in need of care and protection. There was largely [page 188] consensus that the residual wardship jurisdiction resided in the states and that the Commonwealth did not have it. 4.57 In view of the jurisdiction conferred on the newly created Family Court to make orders relating to the welfare of a child of a marriage under former s 64 of the FLA (now s 67ZC(1)), there seemed little scope for residual wardship jurisdiction to remain with the states. The federal jurisdiction was later extended by the referral of power over guardianship and custody of ex-nuptial

children by the states to the Commonwealth. As the terms of the referral of power to the Commonwealth are limited to guardianship and custody, however, a court cannot make an order under the welfare power in respect of an ex-nuptial child that does not fall within this scope:114 see further, 4.91 and 8.116. The question as to the scope of Commonwealth power was referred to in the 1990 Full Family Court decision Re Marion.115 That case concerned the question as to who had power to consent to the sterilisation of a minor. (For further discussion of this case, see 8.116ff.) When the matter raised in Re Marion came before the High Court in Secretary, Department of Health and Community Services v JWB & SMB,116 the court took the view that the Family Court had extremely broad powers under former s 64 in relation to the welfare of a child and that this was an independent head of power that did not have to rely on the then prevailing ‘cross-vested’ jurisdiction. The court’s jurisdiction as to welfare was extremely broad, encompassing wardship and parens patriae powers, and extending to the court’s control over all aspects of the welfare of children subject to its jurisdiction. 4.58 Marion’s case had arisen in a federal territory, so the question as to the wardship jurisdiction could not be fully tested as a possible conflict between a state and a federal power. In a territory, the question of state/Commonwealth powers and the degree to which they might impinge on each other cannot, strictly speaking, arise. It therefore needed a case from a state to test it and that was not long in coming. 4.59 That case was P v P117 in 1994, which dealt with similar facts to those in Marion’s case, but the legal situation was more complex because it arose in a state (New South Wales) and not in a territory. It involved the relative powers of a Commonwealth and a state agency, namely the Family Court and the then New South Wales Guardianship Board.118

[page 189] Specifically, the proposed treatment, if authorised by the Family Court, would contravene Pt 5 of the Guardianship Act 1987 (NSW), which established a legislative scheme for the administration of medical and dental treatment of incapable persons aged 16 years and over. In particular, stringent restrictions were imposed on treatment involving sterilisation. The New South Wales Act also required that the treatment be either authorised by Pt 5 (of the New South Wales Act) or that consent be given under that Part. 4.60 Specific questions were referred to the High Court as a case stated in the following terms. The answers given by Mason CJ, Deane, Toohey and Gaudron JJ (and McHugh J in a separate judgment) are stated under the relevant questions. 1.

Does the Family Law Act purport to confer on the Family Court the power to authorise the carrying out on a child of a marriage medical treatment in New South Wales that is intended, or reasonably likely, to render the child permanently infertile, in circumstances where the carrying out of the treatment would otherwise be contrary to the New South Wales Guardianship Act 1987? Answer: Yes.

2.

If yes to 1, is such purported conferral of power on the Family Court consistent with Ch III of the Commonwealth Constitution? Answer: Yes.

3.

If yes to 2, is such purported conferral a valid exercise of the legislative power of the Commonwealth Parliament? Answer: Yes.

4.

If yes to 3, except in cases to which [former] s 60H(2)(e) of the FLA applies,119 does that Act, by virtue of s 109 of the Commonwealth Constitution invalidate the Guardianship Act to the extent that the latter Act purports to prohibit or authorise a medical procedure to be carried out on a child of a marriage that is intended or reasonably likely to have the effect of rendering the child permanently infertile?

Answer: Yes, but only to the extent that s 35(1) of the Guardianship Act would prohibit medical or dental treatment authorised by a competent order of the Family Court.

[page 190] 5.

If yes to 4, will orders by the Family Court as sought by the applicant in this case provide a valid authority to a medical practitioner in New South Wales to carry out the procedure referred to? Answer: Yes.120

Both Brennan and Dawson JJ dissented and answered ‘no’ to question 1, saying it was unnecessary to answer the other questions.121 4.61 The majority judgment adhered to the answer given in Marion’s case, but pointed out two important qualifications. First, Marion’s case arose in the Northern Territory and therefore did not involve problems arising from the division of legislative powers between the Commonwealth and the states.122 Second, in Marion’s case the Northern Territory did not have any legislation regulating the carrying out of medical treatment involving sterilisation as in Pt 5 of the Guardianship Act 1987 (NSW).123 The majority therefore carried out an examination of the relationship between Pt 5 of the New South Wales Act and the provisions of the FLA that prima facie confer jurisdiction on the Family Court to make the kind of order involved in this case. The relevant conclusion was: The authorisation of medical treatment of an incapable child of a marriage (including of the kind in Marion and in this case) directly related to the protection of the child which arose out of, and was a relevant aspect of the marriage relationship … To the extent that the relevant provisions of Part VII of the Family Law Act confer jurisdiction to give or withhold such authorization they are a law with respect to marriage within s 51(xxi) … They are also directly concerned with the guardianship and custody of infants in relation to divorce and matrimonial causes within s 51(xxii).124

The judgment makes an important statement about the parens patriae jurisdiction (in the context of a ‘child of a marriage’): The relevant provisions of the Family Law Act … confer upon the Family Court a general welfare jurisdiction with respect to a child of a marriage … in circumstances such as those in this case. That jurisdiction corresponds with the traditional parens patriae jurisdiction. It is part of the judicial power of the Commonwealth.125

[page 191] 4.62 Brennan J’s dissenting view can be summarised in the following short paragraph at the beginning of his judgment: The starting point has to be the fundamental principle, plain and incontestable, that every person’s body is inviolate. If the welfare jurisdiction empowers the Family Court to form and to act upon an opinion that a non-consensual invasion of a child’s body is for the child’s welfare although the invasion is not necessary to save the child’s life or to save her from serious bodily harm, the judge’s order offends that fundamental principle.126

A passage near the end shows the logical basis for Brennan J’s stand. It is simply that the powers of the Commonwealth arise out of the marriage (and also the divorce and matrimonial causes) powers. He asks rhetorically: How can the question of a non-therapeutic sterilisation arise out of the marriage relationship?127

His judgment goes on to point out that: The parties to the marriage cannot authorise it, neither can an incompetent child. Even if one postulates that non-therapeutic sterilisation can be for the welfare of some children, the occasion for authorising the sterilisation of a child arises simply because the child is incompetent and nobody else has power to authorise the sterilisation. That ‘occasion’ does not arise out of a marriage relationship or because a child is a child of a marriage.128

4.63 Dawson J, who also rejected the power of the court to authorise the sterilisation, took a different line. He first made a distinction between a law and a court order. In doing so, he pointed out that the case was unlike orders made by the Australian

Industrial Relations Commission, which also made orders that could override state laws.129 His Honour answered that by pointing out that the Commission exercised arbitral, rather than judicial, power and its awards are given legislative force.130 Here, the orders of the Family Court must be exercised in accordance with both state and federal law. In other words, it is the Commonwealth law that may override an inconsistent state law, but not a court order made pursuant to such a law. Dawson J gave examples.131 For instance, he stated that the Family Court cannot make a custody order inconsistent with a state law for the imprisonment of juvenile offenders. Further, he stated that ‘[a] Commonwealth law freeing a [page 192] juvenile offender would not be a law with respect to marriage and a Family Court order purporting to do so would be invalid’.132 He went on to say that a state law of general application (about medical and dental treatment) has been made that applies generally and irrespective of any marital relationship. In particular, he stated: The Commonwealth Parliament has power to make laws with respect to marriage and thus for the welfare of children of a marriage where that aspect of their welfare is sufficiently connected with the marriage relationship. The parliament may confer upon the Family Court jurisdiction to make orders with respect to the welfare of children of a marriage only to that extent. It is in this way that a jurisdiction akin to a parens patriae jurisdiction had been conferred upon the Family Court. But the general words of Pt VII of the Family Law Act must be read down to bring them within constitutional limits. When read down, there is no inconsistency between Pt VII and the Guardianship Act. The jurisdiction of the Family Court with respect to the welfare of a child of a marriage does not extend to those matters placed under the regime established by the Guardianship Act.133

4.64 Importantly, P v P confirmed that as a matter of constitutional law there must be a sufficient connection between a

law dealing with the welfare of the children of a marriage and the marriage relationship. It comes down to how one looks at the question of the child’s welfare and its causal connection with the Commonwealth marriage power. In a wide sense, anything that happens to a child in a marriage relationship is ‘connected’ with the marriage. Taken more narrowly, the child’s physical welfare is covered by the state Guardianship Act and applies to all children, whether born in or out of marriage.

Testing the limits of the welfare jurisdiction 4.65 The precise limits of the Family Court’s welfare jurisdiction in respect of children were tested in the 2004 High Court decision of Minister for Immigration & Multicultural & Indigenous Affairs v B (No 3).134 This case addressed the requirement that there be a sufficient connection between the exercise of the welfare power and the marriage power and, more significantly in this case, directly addressed the need for the exercise of the welfare power to involve a determination of some immediate right, duty, privilege or liability. 4.66 Proceedings had begun in 2002, when two non-resident boys in immigration detention sought, through their mother as ‘next friend’, an order from the Family Court that they be released on the basis that detention was harmful to their welfare. [page 193] The application was brought under the Family Court’s welfare power, s 67ZC(1), discussed further at 8.116–8.125. The fact that these were ‘children of a marriage’ was obviously completely incidental to the question of the release of the children, who had been detained with their parents under federal migration laws.135 The application was unsuccessful at first instance; however, on

appeal, a majority of the Full Court (Nicholson CJ and O’Ryan J; Ellis J dissenting) found that the Family Court had jurisdiction to make such an order on the ground that s 67ZC was based on the marriage power.136 Nicholson CJ and O’Ryan J further found that even if the marriage power did not justify this exercise of jurisdiction, reliance could be placed on the United Nations Convention on the Rights of the Child 1989. Their Honours held that Australia’s ratification of this Convention, and its subsequent adoption into domestic law through the passage of the Family Law Reform Act 1995 (Cth), was an exercise by the Commonwealth of its external affairs power. This then broadened the application of s 67ZC to cover the present application. In subsequently holding the detention of these children to be unlawful, their Honours exercised what they believed was the broad parens patriae jurisdiction given to them. However, the Minister appealed successfully to the High Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).137 Although somewhat differing reasons were proffered for the finding, it was agreed that the power granted to the Commonwealth under s 67ZC was not a power at large in respect of the welfare of the children. Rather, the normal constitutional limitation that there should be the requisite connection to the exercise of federal powers applied. Federal legislative power is, after all, constitutionally constrained to enumerated matters. In that sense then, s 67ZC (regardless of the referral of powers) could not empower the Commonwealth to make orders binding on third parties simply on the basis that the orders proposed advanced the welfare of a child. For further discussion of this case, see 8.125. 4.67 The High Court’s decision in B (No 3) was subsequently summarised by the Family Court (O’Reilly J) as follows: … the High Court made clear that s 67ZC does not itself expressly give jurisdiction in respect of a ‘matter’ for the purpose of ss 75–77 of the Constitution in that it does not refer to any substantive rights, privileges, duties or liabilities or the

persons who can apply for or be made subject to an order under s 67ZC (Gleeson CJ and McHugh J at par 10); that s 67ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage (Gummow, Hayne and Heydon JJ at par 74); the ‘welfare jurisdiction’

[page 194] of the Family Court conferred by s 67ZC is not at large, and the High Court has not as yet articulated definitively the jurisdiction of the Family Court in respect of the welfare of a child (Gleeson CJ and McHugh J at pars 20, 21); whilst s 67ZC does not define the jurisdiction of the Family Court in respect of a ‘matter’, other provisions of the Act may supply the elements of a ‘matter’ (Gleeson CJ and McHugh J at par 22); and that the valid application of s 67ZC is therefore dependent upon some other provision in Pt VII of the Act creating a ‘matter’ within the meaning of ss 75 or 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach or be ‘inferentially linked’ to s 67ZC (Gleeson CJ and McHugh J at par 23).138

In B (No 3), Gleeson CJ and McHugh J clarified the factual distinctions in Marion’s case139 (see 4.57) which justified that decision. Marion’s case was a dispute between a parent and a representative of the child as to where the authority lay to authorise a sterilisation of that child. This question did relate to the substantive rights and duties of parents, precisely because the FLA gives parents those rights and duties. Moreover, it was noted that as the court’s jurisdiction was agreed in Marion’s case, the statements about the extent of the FLA’s welfare power were not intended to be exhaustive.140 4.68 The decision in B (No 3) has been described by the Full Court of the Family Court as posing ‘formidable difficulties’ for any attempts to rely on s 67ZC as conferring jurisdiction on the court to make orders binding on third parties whenever it would advance the welfare of the child to do so.141 In Secretary, Department of Health & Human Services v Ray142 (see 3.47), the Full Court (Bryant CJ, Finn and Ryan JJ) referred to the observation of Gleeson CJ and McHugh J in B (No 3): Nothing in s 67ZC, or in Part VII generally, imposes — expressly or inferentially —

any duty or liability on third parties to act in the best interests or to advance the welfare of a child.143

At first instance in Ray v Males,144 Benjamin J ordered that the Secretary of the Tasmanian department responsible for child protection be joined as a party [page 195] to parenting proceedings under the FLA. The proceedings concerned the future living arrangements for two children, a boy aged 15 and a girl aged nine, and were between the children’s father and his current partner as applicants, the children’s mother as respondent, and their paternal aunt as intervenor. Benjamin J’s concern was that, at the time of making final orders, there might not be any person or party suitable to care for and/or to be responsible for one or both of the children. The Secretary did not wish to intervene in the proceedings, was not willing to accept parental responsibility and would not consent to such an order. While acknowledging that B (No 3) established some limitations on the welfare jurisdiction of the court, Benjamin J distinguished the facts of the case before him because in this case there was a possibility that none of the present parties could be found to be able to be responsible for the children. He concluded: … it could not be the case that this court would simply wash its hands of a child in the hope that the Secretary would change his view and commence proceedings under the State Welfare laws. It must be that when all else fails courts exercising jurisdiction under the Act can vest parental responsibility in a delegate of a State Government to make that officer responsible for the child.145

The Full Court reversed the decision.146 Their decision was based on the High Court authority in relation to the scope of s 67ZC of the Act and the absence of any provision in Pt VII of the Act providing power to make parental responsibility orders in favour of a person who does not already have parental responsibility and who does not consent to accept such responsibility.

Ironically, by the time the appeal hearing commenced, the Secretary had been granted custody and guardianship of both children by orders made by the Hobart Magistrates’ Court pursuant to the Children, Young Person and Their Families Act 1997 (Tas). In spite of this development, the Full Court was satisfied that the appeal was not moot and therefore proceeded to determine the matter. By way of concluding remarks, the Full Court acknowledged the dilemma the trial judge faced, the cooperation that courts exercising FLA jurisdiction regularly receive from state and territory child welfare departments and agencies, and the resource problems such departments and agencies have. Notwithstanding these considerations, the court considered it necessary to observe that: … this case illustrates the need for continuing attempts to harmonise in some way the administration of State and Federal laws concerned with the welfare of children.147

[page 196]

Other proceedings between the parties 4.69 At common law, a husband and a wife could not sue one another because of the unity of person between them which the law assumed to exist. This ancient rule was abrogated some time ago. Progressive inroads had been made into it, commencing with the Divorce and Matrimonial Causes Act 1857 in the UK148 followed by important changes introduced by the Married Women’s Property Acts of 1870 and 1882, also in the UK, and culminating in the Law Reform (Married Women and Tortfeasors) Act 1935 (UK). In Australia, there has been legislation in various states.149 The Commonwealth has now legislated on this matter. Section 119 of the FLA declares that ‘either party to a marriage may bring proceedings in contract or tort against the other party’. The

assumption is that it is within its constitutional power to do so, in order to regulate a particular aspect of the legal rights and obligations between the parties in consequence of marriage, or at least as being ancillary to so doing. In as much as those rights and duties remain to be regulated by state law as at present provided under the Commonwealth Constitution, it has sometimes been suggested that s 119 is beyond power.150 On the other hand, the provision does no more than remove a procedural inhibition under the common law against the enforcement of legal rights and duties between husband and wife. As such, it seems a legitimate use of the marriage power to legislate on this matter.

Overcoming the limitations: first steps 4.70 When the FLA was introduced, there were early steps taken to overcome the limits on federal power to invest federal courts with jurisdiction over family law matters. These first steps saw state courts involved in the administration of Commonwealth legislation, and provision made for the creation of state family courts. These steps are considered in the following paragraphs. A number of bolder steps have been taken since the FLA was introduced with a view to overcoming the constitutional constraints under which the Commonwealth Parliament operates in legislating for family law. Not all of these bold steps, discussed at 4.81ff, have withstood challenge: the cross-vesting legislation regime fell foul of constitutional limitations. [page 197] 4.71 In relation to the territories, the Commonwealth of course retains its plenary powers and the problems arising from the federal/state dichotomy of power do not arise.151 However, the detailed administration of family law in the territories — other

than those matters covered by the FLA itself — is dealt with under territorial laws. The involvement of state courts in the administration of Commonwealth laws is a different matter. As we have seen, the Constitution makes provision for investing state courts with federal jurisdiction (s 77(iii)), a provision that was utilised as the exclusive means of administering the Matrimonial Causes Act 1959 (Cth): see 1.38 and 4.28. The various steps that have been taken to overcome the limits on federal power by conferral of jurisdiction on state and federal courts are now discussed below.

Involvement of the state courts 4.72 The FLA, in the main, relied on the newly created Family Court of Australia to administer the provisions of that Act. The state courts, invested with federal jurisdiction, have continued to play a part. Section 39 of the FLA invests the Supreme Courts of the states with jurisdiction to hear and determine matrimonial causes under the Act, as well as matrimonial causes instituted before the FLA but continued under that Act, and certain enforcement proceedings.152 That arrangement, however, was terminated by proclamation with effect from 1 June 1976 pursuant to s 40(3).153 The FLA also invested state courts of summary jurisdiction with jurisdiction to determine matrimonial causes, not being proceedings for principal relief.154 This jurisdiction can be terminated155 but it continues to be exercised,156 except in the metropolitan region of Western Australia (due to the setting up of the Family Court of Western Australia: see 1.48 and 4.116ff). In Western Australia, in addition to regional Magistrates’ Courts, there is a Magistrates’ Court housed in the Family Court of Western Australia’s premises, which is devoted solely to family law matters.157 The magistrates who preside over that court hold dual commissions as registrars.

[page 198]

State family courts 4.73 One of the most interesting innovations brought about by the FLA was the provision enabling state family courts to be set up.158 Where a state sets up such a court, this court may, by proclamation of the Governor-General, be brought within the provisions of the FLA subject to certain conditions. These are set out in s 41(4) of the FLA. First, the appointment of judges to a state family court must first have the approval of the Commonwealth Attorney-General.159 Second, they must ‘by reason of training, experience and personality, be suitable to deal with matters of family law and cannot hold office beyond the age of 70 years’.160 The third condition ensures that the state family court will have counselling facilities available to it.161 These conditions are designed to ensure that a state family court will, in all essential respects, function on similar lines to those of the Family Court of Australia. So far as the material conditions and facilities of the court are concerned, this represents no hardship to the state. It is envisaged that the arrangements for setting up a state family court will be made in pursuance of arrangements between the Commonwealth and the state, under which the Commonwealth ‘will provide the necessary funds for the establishment and administration of those courts’.162 4.74 Since the creation of the Family Court of Western Australia, no interest has been shown by any of the other states in following a similar course, and the time for any further extensions of such institutional autonomy in the field of family law can be said to have well and truly passed. 4.75 Until the relatively recent changes to the FLA in relation to the financial breakdown of de facto relationships (see 4.92, 4.103),

there were some advantages in the establishment of a system of state family courts. It was one way of minimising the disadvantages of the fragmentation of Australian family law occasioned by the imperfect distribution of powers in this area and the Commonwealth Constitution. State family courts could administer both federal and state family law, so that in any one state adopting this system, family law could be unified. Disparity could still remain, however, between the laws of the states. 4.76 One interesting provision relating to state family courts is the expedient of creating concurrent appointments of judges. This enables federal judges to hold state commissions and vice versa.163 The provision was inserted into the FLA by the Family Law Amendment Act 1976 (Cth) in order to reciprocate a converse [page 199] arrangement envisaged under the then Family Court Act 1975 (WA) and later the Family Court Act 1997 (WA), where all judges of the Family Court of Western Australia hold dual commissions: see 1.48.

The Family Court of Western Australia 4.77 Not long after the enactment of the FLA, and even before it commenced operation, Western Australia decided to avail itself of the provisions allowing the creation of a state family court. The reasons for doing so were: (1) to provide a single court of unified jurisdiction, administering matters of family law, both federal and state; (2) to enable the state to continue to exercise jurisdiction in family law matters which would otherwise have been removed into the Family Court of Australia, with the opportunity of retaining complementary action with other responsibilities in the areas of welfare and counselling services; (3) in the public interest to keep the administration of justice as close as possible

to the people it is designed to serve; (4) to obviate the creation of a further Commonwealth court in the state.164

4.78 The Family Court Act 1975 (WA) came into force on 1 June 1976.165 It was subsequently replaced by the Family Court Act 1997 (WA) and this Act came into force on 26 September 1998.166 4.79 The 1975 Act provided for the creation of the Family Court of Western Australia and this was continued under the 1997 Act.167 The court exercises both the federal jurisdiction vested in it by the FLA and non-federal jurisdiction as specified.168 The latter primarily relates to the parental responsibility, welfare and maintenance of ex-nuptial children. 4.80 As noted above, the Western Australian expediency of setting up a state family court under s 41 of the FLA has not been followed by any other state. In Western Australia, setting up the Family Court of Western Australia, which is invested with both state and federal jurisdiction, has ensured that all areas of family law in that state are dealt with by the same tribunal.169 [page 200] Just as the possibility of achieving uniformity in the laws of marriage and divorce commended itself to the founding fathers of the Constitution, so the increasing mobility and homogeneity of the Australian people makes it desirable that legislation affecting the family should be uniform throughout Australia. Unfortunately, the use of state courts as a solution to the limits of Commonwealth power cannot ensure a uniform approach in state matters of family law as between the different states. The states could, of course, enact uniform legislation in consultation with each other and the Commonwealth, as has happened in other areas of law in Australia. As it happens, however, Western Australia has followed the

federal law so closely that the provisions are largely identical. The Family Court of Western Australia has administered the FLA in conformity with guidelines set out by the Full Court of the Federal Court and by the High Court. There has been full interchange of judges between the Family Court of Western Australia and the Family Court of Australia. To all intents and purposes therefore, the existence of this state Family Court has not affected the administration of the law under the federal Act.

Overcoming the limitations: bold steps 4.81 As a device for overcoming jurisdictional problems in the Australian state/federal context, the investment of family law jurisdiction in state courts, while potentially a possible solution, has not commended itself to Australian parliaments. It would have constituted half a step backwards to the days of the Matrimonial Causes Act 1959 (Cth), when marriage and divorce came within the province of state parliaments and where uniformity of laws depended on political cooperation rather than one federal law. Instead, more imaginative devices entered the scene, which will now be considered. They are the devices of accrued jurisdiction, referral of power legislation of the states and the cross-vesting legislation. The first-mentioned was an exercise in judicial ingenuity borrowed from US jurisprudence, while the second and third could be regarded as examples of a ‘cooperative federalism’. A possible fourth solution, more radical than any of the others but much harder to achieve, would have been to confer plenary power over ‘family law’ on the Commonwealth by constitutional amendment. Given the difficulties that have always beset such a move and the uncertainties of political manoeuvring that this could have sparked, it seems that the pragmatic solutions that have actually been initiated may be all that is needed to pull this jurisdiction out of the danger of a constitutional impasse. 4.82

Constitutional problems did not arise before the entry of

the Commonwealth into this area when it enacted the Matrimonial Causes Act 1959. Commonwealth involvement has highlighted the undesirability of the kind of fragmentation that arises when an area of the law, which by its nature demands a uniformity [page 201] of treatment, is split up arbitrarily into different jurisdictions simply for reasons determined by the allocation of powers in the Commonwealth Constitution. Family law is not a large area of law; it should offer every opportunity for a unified approach but for these extraneous restraints. The Commonwealth, largely on the initiative of then Attorney-General, Senator Lionel Murphy, greatly enlarged the scope of its involvement in family law under the FLA. Even that enlargement would not have effected complete unification, but as a result of the decision of the High Court in Russell v Russell,170 the Commonwealth at first retreated somewhat from its earlier position. Fragmentation of the law on jurisdictional lines results in the possibility of differences of approach to similar problems. It may result in an unevenness in the development of facilities created for dealing with similar problems. It may lead to manoeuvring and the use of subterfuge as parties attempt to get themselves within a particular jurisdiction not otherwise open to them. These effects are likely to be unsatisfactory to anyone who is concerned that the best legal solutions and facilities should be available for dealing with problems that closely affect the happiness of so many families and, particularly, the children.

Associated and accrued jurisdiction 4.83

Section 33 of the FLA confers on the Family Court

jurisdiction in respect of matters that are ‘associated’ with the jurisdiction being exercised by the court. Similarly, s 18 of the Federal Circuit Court Act 1999 (Cth) confers associated jurisdiction upon the Federal Circuit Court. The term ‘associated’ jurisdiction is to be distinguished from ‘accrued’ jurisdiction. Referring to associated jurisdiction in R v Ross-Jones; Ex parte Beaumont,171 Gibbs J commented: The effect of this section is far from clear. It cannot be intended to mean, and would not be constitutionally valid if it did mean, that if the jurisdiction of the Court is unsuccessfully invoked it nevertheless has jurisdiction in associated matters. The section can only apply if the Court already has jurisdiction; its jurisdiction is then extended, so far as is constitutionally permissible, to associated matters.172

The fact that the jurisdiction conferred by the relevant provision only arises once the court’s jurisdiction is already properly invoked apparently limits its usefulness as a means of extending federal jurisdiction. The associated jurisdiction of the Family Court and the Federal Circuit Court is equivalent to the jurisdiction invested in the Federal Court,173 which has been held to invest jurisdiction only [page 202] in respect of associated matters that arise under Commonwealth law.174 As none of the relevant provisions invest the federal courts with jurisdiction in associated matters under state law,175 the importance of associated jurisdiction as a means of supplementing the jurisdiction of the family courts is further ‘diminished’.176 4.84 Accrued jurisdiction is a development that surfaced in the 1980s. It has played a greater role than associated jurisdiction in extending the jurisdiction of the Family Court. Accrued jurisdiction is explained by Barwick CJ in the 1981 case of Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd as follows:177

… when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has, in the first place, attracted federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source.178

When the court’s accrued jurisdiction is invoked, a federal court is able to resolve the whole matter before it, even if part of the matter before it involves a dispute arising under non-federal law. The federal and non-federal matters that were involved in Philip Morris were, respectively, a claim under the Trade Practices Act 1974 (Cth)179 (now repealed) and an equitable action for passing off, which was a matter within state jurisdiction. In the result, the passing off action was held to be ‘part of the whole matter’ and thus within the accrued federal jurisdiction. This doctrine has been subsequently applied to the Federal Court by the High Court.180 In Stack v Coast Securities (No 9) Pty Ltd,181 Mason, Brennan and Deane JJ said that parliament had power under the Constitution ‘to give authority to federal courts to decide the whole of a single justiciable controversy of which a federal issue forms an integral part’.182 The ‘single controversy’ must be able to be distilled from the facts. [page 203] In Re Wakim; Ex parte McNally,183 the High Court drew on what was said in Fencott v Muller184 and concluded: What is a single controversy ‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’. There is but a single matter if different claims arise out of ‘common transactions and facts’ or ‘a common substratum of facts’, notwithstanding that the facts upon which the claims depend ‘do not wholly coincide’. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for

example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination.185

4.85 For some time, doubts surrounded the question whether the Family Court has accrued jurisdiction. The High Court examined the accrued jurisdiction question in relation to family law in the 1986 case of Smith v Smith.186 The court had to consider the application of the accrued jurisdiction to the Family Court. The proceedings here were property proceedings and concerned a ‘maintenance agreement’ under s 87 of the FLA. In applying to the Family Court for the agreement to be approved, the wife also applied for approval of a release under the then Family Provision Act 1982 (NSW). This release was to be provided for by cl 7(a) of the deed of settlement. The clause purported to operate as a mutual release between the parties from any claims under the New South Wales Act (which had taken the place of the previous Testators’ Family Maintenance legislation concerning provisions to be made out of deceased estates). Any release from those provisions required the approval of the state Supreme Court under the relevant provision of the New South Wales Act.187 The questions raised, among others, in a case stated to the Full Court of the Family Court, related to whether the Family Court possessed accrued jurisdiction to make the order for the release that was within state jurisdiction. It was argued that because the provisions of the proposed deed dealing with release from the New South Wales Act were associated with the matters under the FLA, the Family Court had such accrued jurisdiction. The questions were removed into the High Court from the Full Court of the Family Court. Two questions were considered by the High Court. The first was whether, notwithstanding the relevant provision of the New South Wales Act, the release pursuant to cl 7 of the deed was effective because of s 109 of the Constitution,

[page 204] which gives precedence to a valid law of the Commonwealth over a conflicting law of a state. The second question was whether the Family Court had accrued jurisdiction, so as to enable it to exercise the powers of approval as contained in the relevant provision of the New South Wales Act. The High Court held that the purported release under cl 7 of the deed was not effective, notwithstanding its approval by the Family Court, and that the Family Court had no accrued jurisdiction to exercise the powers of approval as contained in the relevant provision of the New South Wales Act. 4.86 Despite the failure of the use of accrued jurisdiction in this case, several justices of the High Court subsequently expressed some support for its use by a federal court, particularly given the constitutional limitations in the use of cross-vested jurisdiction: see 4.93–4.104.188 In the 2001 Family Court case of Wade-Ferrell & Read,189 the Full Court (Lindenmayer, Finn and Morgan JJ), after commenting that the extent of accrued jurisdiction is yet to be ‘conclusively determined by any decision of the High Court or this Court’,190 stated: … if this Court does have accrued jurisdiction, then we think that this is a case in which the non-federal claim of the intervenor in respect of the improvements she effected in the matrimonial home of the husband and the wife was, in the context of this case, ‘attached to’ and ‘non-severable from’ both the claims of the husband and wife under s 79 of the Act for the orders in respect of that home, and the intervenor’s claim, for the payment to her of the debt of $63,000 owing by her to the husband and the wife. All three claims (the claims of the spouses under s 79, the claim by the intervenor in respect of the debt and the claim of the intervenor in respect of the improvement to the home) arose out of a ‘common substratum of facts’ (per Mason J in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 33 ALR 465 at 504) and it was clearly just and convenient that all three claims be adjudicated upon in the same proceedings in the same court.191

4.87 While the Full Court in Wade-Ferrell & Read determined that it was not necessary to reach a definitive conclusion in

relation to the existence and extent of accrued jurisdiction, it was not so hesitant in the 2001 case of Marriage of Warby,192 where the Full Court (Nicholson CJ, Finn and Strickland JJ) stated: We have formed the view that as a matter of law, the Family Court of Australia is not restricted to the determination of a family law claim or proceeding; it may

[page 205] exercise accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part. The factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction.193

The Full Court listed seven reasons for reaching this view.194 1.

2.

3.

4.

5.

First, there is no constitutional basis for not applying to the Family Court the High Court’s analysis in the Philip Morris case195 (see 4.84) of how and why the Federal Court has and may exercise accrued jurisdiction. Second, the High Court has, in a number of decisions, implied that the Family Court has accrued jurisdiction just as the Federal Court does and, in particular, the High Court has not ruled to the contrary when it has had the opportunity to do so.196 Third, given that the Family Court and the Federal Court (that has an accrued jurisdiction) are both federal courts of limited jurisdiction created by statute, there is no basis of distinction between them on the question of accrued jurisdiction. Fourth, amendments to s 31 of the FLA (by the Family Law Amendment Act 1983 (Cth)) enlarged the court’s jurisdiction and defined it to cover matters ‘in respect of which matrimonial causes are instituted or continued’.197 Fifth, the court disagreed with judicial statements (such as those of Strauss J in Marriage of McKay)198 that rejected the application of accrued jurisdiction in the Family Court and

6.

7.

agreed with judicial statements in favour of its application (eg Nygh J in McKay and Evatt CJ in Smith & Smith (No 2)).199 Sixth, the court noted that it is given a number of wide general powers under s 80 of the FLA that Evatt CJ had referred to in Smith & Smith (No 2) in support of an accrued jurisdiction, and the High Court had made no adverse comment about those comments when that case came before it in 1986.200 Last, the Full Court noted that it is well settled that the Family Court has power in certain circumstances to make orders binding unwilling third parties (eg proceedings under s 106B of the FLA). [page 206]

The court then went on to consider in what circumstances accrued jurisdiction could be invoked.201 It viewed the following factors as relevant: 1.

what the parties have done;

2. 3.

the relationships between or among them; the laws which attach rights or liabilities to their conduct and relationships;

4.

whether the claims are part of a single justiciable controversy and in determining that question whether the claims are ‘attached’ and not ‘severable’ or ‘disparate’; and whether the claims are non-severable from a matrimonial relationship and arise out of a common sub-stratum of facts.202

5.

These factors go to the question of whether accrued jurisdiction is available in a particular matter. In the later case of Bergman v Bergman,203 the Full Court observed that once it has been determined that such jurisdiction does exist there is, at least as a general rule, no discretion not to exercise that jurisdiction.204 The Full Court in Warby also opined that accrued jurisdiction extends to the making of orders that bind third parties who refuse

to take part in proceedings.205 Following the introduction of Pt VIIIAA by the Family Law Amendment Act 2004 (Cth), the Family Court now has a wide jurisdiction to make orders that bind third parties: see Chapter 15. Accrued jurisdiction can be invoked to resolve whether property in dispute belongs to a third party or to the parties to the marriage; for example, where there is a dispute as to the existence of a trust or other beneficial interest in property. This jurisdiction continues to exist as an alternative basis for extending the reach of the remedial powers of the Family Court and parties may seek to invoke the court’s accrued jurisdictions when non-federal disputes arise.206 As Lee Aitken notes, accrued jurisdiction is particularly important in a family law context because: the multiplicity of personal and business relationships involved in a family law proceeding will frequently raise related questions of partnership, trust, company law, and contract which involve third parties, and which also fall to be determined, if they can be, in the original dispute.207

[page 207] 4.88 The case law is beginning to clarify the application and limits of accrued jurisdiction.208 In Whitehouse v Whitehouse,209 for example, the Full Court (May, O’Ryan and Stevenson JJ) held that in the absence of a dispute between the parties over which the Family Court had jurisdiction, no application relying on accrued jurisdiction could attach to a Family Court matter.210 In this case, an elderly husband and wife made an application for property settlement through their case guardians. Shortly afterwards, the husband died. The wife then amended her application and sought to invoke the accrued jurisdiction of the court, seeking a declaration that the husband and his successors held an interest in property in his name on trust. The wife then also died. The husband’s personal representative challenged the court’s jurisdiction to hear the wife’s amended application.

The trial judge concluded that the amended application was a matrimonial cause which could have been brought under s 78. As the wife had died, however, there was no dispute remaining between them over which the court had federal jurisdiction. The Full Court dismissed the appeal against the trial judge’s decision brought by the personal representatives of the wife. Although the provisions of s 79(8) allow for proceedings to be continued after the death of one party, after the death of both parties there is no federal jurisdiction on which an application can be based. In respect of the exercise of accrued jurisdiction in de facto property disputes, the existence of a de facto relationship is also a threshold requirement to the accrued jurisdiction of the family courts.211

Referral of power 4.89 The second development that occurred was even more significant in that it represented a recognition on the part of the states that the investment of the Commonwealth in matters of family by means of s 51(xxi) and (xxii) of the Commonwealth Constitution was incomplete. This led to a conscious handing over of constitutional power in relation to children. Section 51(xxxvii) has always provided for such a step. The section provides that a law thus referred will extend only to the particular state exercising this option. Under this provision, it is open to a state to refer to the Commonwealth any of its powers; for example, in the area of family law. No referendum is required and a simple majority in a state parliament is sufficient to achieve this purpose. Once referred, the matter becomes a matter of Commonwealth power, as if it had been included in s 51 of the Constitution. [page 208]

While the Commonwealth can then legislate under the referred power, there are two aspects that make such a manner of transferring power to the Commonwealth inferior to amendment of the Constitution. First, such legislation operates only in the state that has referred it, so that Commonwealth uniformity, which is desirable, operates only if all states agree to this device. Second, it is always open to a state parliament to revoke the referral (or reference) of power. There was at one stage a doubt in some quarters as to whether a state that had referred a power to the Commonwealth might subsequently not be able to revoke the referral and thus re-acquire the power it had handed over. This was based on some dicta in the High Court in the 1950s and 1960s, but the actual question never fell for decision. 4.90 The doubts finally gave way to the acceptance of the principle that the power to legislate on a given topic includes a power to amend or repeal. Five states — New South Wales, South Australia, Tasmania, Victoria (all in 1986) and Queensland (in 1990) — enacted legislation in substantially identical terms (the Commonwealth Powers Acts),212 preparatory to the coming into effect of the Family Law Amendment Act 1987 (Cth). Western Australia has not followed the other states but, in view of its unified jurisdiction, the same constitutional problems that arose in the other states have not arisen there. Since the FLA also applies in the Australian Capital Territory, the Northern Territory and Norfolk Island, the amending Act also applies in these jurisdictions. The legislation has the effect of referring state powers with respect to ‘guardianship, custody, maintenance and access’ in relation to ex-nuptial children to the Commonwealth, but leaves state jurisdiction to deal with adoption and child welfare intact. 4.91 The relevant state Acts are quite short. Section 3(1) refers to ‘(a) the maintenance of children and the payment of expenses in relation to children or child bearing; (b) the custody and

guardianship of, and access to, children’. Subsection (2) expressly exempts from the referral all matters relating to child welfare under the various Acts specified in the Schedule. The matters listed specifically include the jurisdiction of the Supreme Courts and other state courts to make orders concerning such children. The state Acts expressly preserve to the Governor (in Victoria and Queensland, to the Governor in Council) power to terminate the reference by proclamation. This possibility of revocation is also expressed in the referring provision in s 3(1), which expresses the reference to operate only until such date as may be specified in [page 209] a proclamation pursuant to s 4.213 No doubt the revocation provisions are designed to help remove the doubts discussed (see 4.89) concerning the ability of the states to reclaim a power once it has been referred. 4.92 The most recent use of the referral power was in the amendments to the FLA by the passage of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth):214 see Chapters 10 and 15. Western Australia has not referred power over de facto financial matters generally, but has referred certain superannuation matters arising out of the breakdown of de facto relationships to the Commonwealth with a view to the Family Court of Western Australia being invested with federal jurisdiction to deal with those matters.215 To date, the Commonwealth Government has not accepted this limited referral of power.

Cross-vesting of jurisdiction 4.93 The other innovation introduced in 1987, and ultimately unsuccessful to a large extent, was the uniform cross-vesting

legislation enacted by the Commonwealth, all the states and the territories.216 The Acts, in substantially identical form, all have the same title: Jurisdiction of Courts (Cross-vesting) Act 1987 (except the Australian Capital Territory Act, which is dated 1993).217 [page 210] 4.94 The purpose of this legislation is expressed in the preamble to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) in the following terms: WHEREAS inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in federal, State and Territory courts, and whereas it is desirable — (a) to establish a system of cross-vesting of jurisdiction between those courts, without detracting from the existing jurisdiction of any court; (b) to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, would be entirely or substantially within the jurisdiction (other than any accrued jurisdiction) of the Federal Court or the Family Court or the jurisdiction of a Supreme Court of a State or Territory are instituted and determined in that court, whilst providing for the determination by one court of federal and State matters in appropriate cases; and (c) if a proceeding is instituted in a court that is not the appropriate court, to provide a system under which the proceeding will be transferred to the appropriate court.

4.95 Cross-vested federal jurisdiction is vested in state and territory Supreme Courts and, conversely, the federal courts are vested with the full jurisdiction of the state and territory Supreme Courts. The purpose of the scheme, according to the Explanatory Memorandum accompanying the federal Bill, expressed the hope: … that no action will fail in a court through lack of jurisdiction, and that as far as

possible no court will have to determine the boundaries between federal, state and territory jurisdiction.

Unfortunately, this hope was to be short-lived. Despite this purported ‘borrowing’ of jurisdiction, the scheme always intended that the courts would keep within their ‘proper’ jurisdictional fields. Consequently, the legislation provides for transfers between courts where it appears that proceedings have been launched in the wrong forum. According to the Explanatory Memorandum: The provisions relating to cross-vesting will need to be applied only in those exceptional cases where there are jurisdictional uncertainties and where there is a real need to have matters tried together in the one court … Courts will

[page 211] need to be ruthless in the exercise of their transferral powers to ensure that litigants do not engage in ‘forum-shopping’ by commencing proceedings in inappropriate courts.218

4.96 The material sections of the cross-vesting legislation are: s 3, the definition section; s 5, which deals with transfer of proceedings; and s 9, which deals with the exercise of jurisdiction. Section 3 defines the Family Court and the Federal Court. In short, the legislation provides for the transfer of proceedings from a state or territory Supreme Court to the Federal Court or the Family Court; from a Supreme Court of a state or territory to that of another; and from the Family Court or Federal Court to a state or territory Supreme Court. Section 3 confers jurisdiction on the court to which the proceedings are transferred to hear and determine the proceedings. 4.97 The construction of the cross-vested legislation was discussed in a number of reported decisions. A leading case is Re Chapman & Jansen,219 a 1990 decision of the Full Court of the Family Court of Australia (Fogarty J; Olney J concurring, Nicholson CJ dissenting). In his judgment, Fogarty J provides a

careful analysis of the cross-vesting legislation and its intent and scope.220 He held that where proceedings at the time of application for transfer contained only cross-vested claims, the proceedings should be transferred to the relevant state court unless, in a particular case, the interests of justice required it to continue to determination in the original court.221 The time to determine this was when the application for transfer was made. Where, at the time of application for transfer, proceedings were composed partly of Family Court and partly cross-vested claims, the question whether to transfer to the state court or proceed to determine in the Family Court was a matter of justice in each case. The question in each case was, which is the ‘natural forum’, or which court has the ‘most real and substantial connection’.222 4.98 Interestingly, the use of the cross-vesting scheme came in for some criticism by the Full Court in the 1997 case of Kennon v Kennon.223 Under scrutiny was its use in the context of domestic violence and, more particularly, the hearing of cross-vested proceedings for damages in conjunction with property proceedings under s 79 of the FLA. In their majority judgment, Fogarty and Lindenmayer JJ, [page 212] after noting the growing use of the scheme and the procedural advantages that exist, also commented that: … this practice also creates difficulties and produces results which overall may not be satisfactory. It involves the simultaneous hearing of two claims with different dynamics and which serve different purposes. It does not necessarily follow that this court will in all such cases consider it appropriate to adjudicate the cross-vested issue. It may consider that it is more appropriate to transfer the proceedings to a state court for determination.224

A similar caution was expressed by Baker J, who stated that in his opinion:

… it is preferable in most cases for domestic violence in a marriage to be taken into account as an element of contribution rather than for litigants to pursue damages claims for assault and/or battery in cross-vested proceedings from a state Supreme Court. Cross-vested claims for damages … are rather cumbersome proceedings which do not fit comfortably with litigation under the Family Law Act because of the necessary rigid nature of Supreme Court practice and procedure.225

4.99 From 1988 until 1999, the cross-vesting scheme overcame constitutional deadlocks that used to bedevil the Family Court’s jurisdiction. It was as ingenious as it was simple, but it ultimately proved to be unconstitutional, at least in part. The High Court finally examined the constitutionality of the scheme (in the context of corporations and bankruptcy law) in a number of cases in 1998 and 1999. In Gould v Brown226 the scheme survived a constitutional challenge, but the decision was a close one, with the court being equally divided.227 However, this was a short-lived victory for the scheme. In Re Wakim; Ex parte McNally,228 the High Court held that Ch III of the Constitution prevents the states from vesting jurisdiction in federal courts. Consequently, that part of the scheme that enabled federal courts to hear state matters (for example, the Family Court determining a claim under state-based de facto relationships legislation) was invalid. 4.100 In Re Wakim, the majority of the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting) found that the purported state-to-federal jurisdictional transfer or exercise of judicial power was [page 213] unconstitutional. The exercise of power was not within the Commonwealth’s incidental power229 and was clearly not ‘referred’ by the states.230 Put simply (and to paraphrase the words of Gummow and Hayne JJ; Gleeson CJ and Gaudron J agreeing), it is the Constitution itself that gives the federal courts their power

and not some cooperative scheme invented by the federal and state legislatures.231 4.101

In his judgment, McHugh J commented that:

Because the Court was equally divided in Gould v Brown, the decision in that case creates no ‘binding authority’ in this Court. Having read and listened to the arguments of the parties and the interveners in these proceedings, I am just as convinced now as I was when Gould was decided that, consistently with the Constitution, the Corporations Act 1989 and the Corporations (New South Wales) Act 1990 are invalid insofar as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power. For the reasons that I gave in Gould, I am also convinced that the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1987 of each of the States are also invalid insofar as they purport to give the Federal Court of Australia jurisdiction to exercise State judicial power.232

His Honour was not blind to the reality that the partial demise of cross-vesting would cause: It would be very convenient and usually less expensive and time-consuming for litigants in the federal courts if those courts could deal with all litigious issues arising between the litigants, irrespective of whether those issues have any connection with federal law. From the litigant’s point of view that is saying a great deal. But unfortunately, from a constitutional point of view, it says nothing … The inability of the federal courts to exercise cross-vested State jurisdiction in the manner provided for under the present legislation simply shows another deficiency in the system. I do not think that it can be seriously doubted that, if Australia is to have a system of federal courts, the public interest requires that these courts should have jurisdiction to deal with all existing controversies between litigants in those courts.233

4.102 Not all aspects of the cross-vesting scheme fell foul of the High Court’s decision in Re Wakim. Transfers of federal matters (and territory matters) can still be validly transferred to a state court under the scheme. Additionally, a vesting of jurisdiction between the Commonwealth and the territories is permissible. [page 214] The issue of a transfer of jurisdiction from the states to a territory

court was not considered in either Gould v Brown or Re Wakim. 4.103 In addition to its impact on corporate law, the partial demise of the cross-vesting scheme had an immediate effect on Australian family law. While the former was swiftly remedied by a reference of powers by the states to the Commonwealth, the latter has proved more difficult to solve. Many family law matters now needed to be resolved in both a federal and a state court. Of immediate relevance was the reality that cross-vesting had allowed de facto couples to seek orders in the Family Court to resolve both parenting disputes (federal jurisdiction) and property disputes (state jurisdiction). This problem has since been resolved by the states referring their powers over de facto relationships that have broken down to the Commonwealth, and the resultant amendments to the FLA (by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)): see Chapters 10 and 15. Nevertheless, many other procedural benefits that cross-vesting provided to family law litigants have now been lost. 4.104 Following the decision in Re Wakim, the six states each passed an Act entitled Federal Courts (State Jurisdiction) Act 1999. The effect of the legislation was to designate as relevant ‘state judgments’ all ‘ineffective judgments’ made by a federal court (such as the Family Court) under the cross-vesting scheme. To the relief no doubt of some litigants, this remedial legislation was held to be effective by the High Court in Re Macks; Ex parte Saint.234

Domicile and the basis of jurisdiction 4.105 In order for the Commonwealth Parliament to confer jurisdiction on courts to exercise jurisdiction to enforce laws with respect to marriage and matrimonial causes, a connection must be established between Australia and the person to whom the law

applies. In modern UK law, the connecting factor between a person and the jurisdiction of the courts of a particular country to determine matters of personal status (pre-eminently matters of family law) has been the domicile (or domicil) of the person. This has been so since at least 1895.235 Not all countries, however, have adopted this principle. Many legal systems in modern times have preferred to select nationality, rather than domicile, as the connecting factor. In others, the personal status has [page 215] been dependent on religion or race. In Australia, the states, and at first the Commonwealth, followed the UK approach in this matter. Domicile was traditionally described as the place where a person had their legal home. This was not necessarily the same thing as residence. The person could have a residence in several places; they might carry on business in one and divide the rest of their time between two or more others, maybe in more than one country. The concept of residence was further refined by the creation of a distinction based on ‘habitual residence’.236 Both the concept of ‘domicile’ and ‘residence’, however, at times created certain difficulties of application. 4.106 At common law, a person acquired a domicile on birth. This was known as the domicile of origin. It was the domicile of the person’s father or, in the case of a posthumous or ex-nuptial child, of the mother. Until the child attained the age of majority, the domicile of the father (or the mother as the case may be) continued to apply. On marriage, a woman acquired the domicile of her husband and was incapable of changing it unilaterally during her marriage. On attaining the age of majority, a person other than a married woman became capable of adopting a domicile of choice, and

could change their domicile of origin to a domicile of choice. To determine whether the person had done so, the circumstances had to be examined. Obviously, matters such as actual residence and intention were circumstances from which such a change of domicile could be inferred. The residence, it seems, prima facie had to be intended to be permanent. The actual length of residence did not, of itself, necessarily determine the question whether a change of residence imported a change of domicile also. Nor were statements as to intention accepted as conclusive evidence to give effect to such a change. What was more important was whether the conduct of the person in question was referable to the choice of a particular place. A court would have regard to conduct such as owning a house or other real estate, conducting a business or practising a profession in a particular place, or becoming naturalised as indicating a choice of a country other than the country of origin as the domicile of choice. There was an important difference between domicile of origin and domicile of choice, and that was the tenacity of the former. If a person abandoned their domicile of choice, then unless or until they established another, that person automatically reverted to their domicile of origin. That result followed as a matter of law, regardless of any intent to do so, or of whether the person even set foot in the country of their domicile of origin. 4.107 The general rule under the Matrimonial Causes Act 1959 (Cth) was that proceedings for dissolution or nullity of a voidable marriage could be instituted only by a person with an Australian domicile. The person had to be either [page 216] domiciled or resident to take proceedings for nullity of a void

marriage, judicial separation, restitution of conjugal rights or jactitation of marriage.237 That rule was modified so as to remove the hardship it could cause in the case of a deserted wife whose husband had left Australia. Since she still held her husband’s domicile, she would have been precluded from applying for matrimonial relief in an Australian court, with the consequential expense of having to resort to the court of her husband’s domicile. This would probably have required her to travel overseas to present her case. The rule was therefore modified in two ways. A deserted wife who had been domiciled in Australia immediately before her marriage or the desertion was deemed to be so domiciled for the purposes of any proceedings under the Matrimonial Causes Act 1959.238 Additionally, a wife who had been resident in Australia for three years immediately before bringing proceedings under the Act, and who was still so resident at the time, was likewise deemed to be domiciled in Australia.239 4.108 The FLA made considerable changes in these jurisdictional rules. Since the 1969 case of Indyka v Indyka,240 the principle of real and substantial connection with a country has tended to overshadow the principle of domicile in that country as the sole connecting factor. Indyka dealt with the recognition of foreign judgments, but it is submitted that its influence went beyond that particular topic. At all events, jurisdiction under the FLA became dependent on the following factors. Any proceedings under paras (a)–(e) of the definition of matrimonial cause in s 4(1) of the FLA could be taken under the Act if either party to the marriage was an Australian citizen. If the proceedings were for dissolution of marriage, jurisdiction also existed if either party was domiciled in Australia or was, and had been, ordinarily resident in Australia for one year immediately preceding the institution of proceedings.241 If the proceedings were not for dissolution of marriage but were otherwise proceedings under paras (a)–(e) of the definition of matrimonial

cause, jurisdiction also existed if either party was present in Australia or, where the proceedings related to a child of the marriage, if the child was present in Australia.242 The same applied where the parties to proceedings were not parties to the marriage to which the proceedings related. Under provisions of the Family Law Amendment Act 1987 (Cth), s 39(4) was simplified and widened by making ordinary residence or presence the relevant connecting factor in all cases, except for divorce and nullity proceedings. That paragraph referred to proceedings between the parties to a marriage, or validity [page 217] proceedings, in which case the criteria of citizenship, ordinary residence or presence in Australia continued to apply. Consequently, the dominant principles for jurisdiction in contemporary matrimonial causes are citizenship and residence, rather than domicile, although domicile and presence in the jurisdiction are still relevant for some purposes. Other rules apply to the question of recognition of overseas decrees.243 4.109 There can be no doubt that the Commonwealth has power to make rules as to domicile and other jurisdictional factors, as being incidental to providing for the setting up of a jurisdiction to enforce laws with respect to marriage and matrimonial causes. However, it should be borne in mind — for example, in relation to domicile — that any domicile created or recognised under the Marriage Act, the Matrimonial Causes Act or the FLA is domicile for the purposes of these Acts only. A person may therefore have Australian domicile in this context, and yet be domiciled in a particular state for the purpose of a law of that state. 4.110

Uniform legislation by both the Commonwealth and the

states and territories has now abolished the principle of dependent domicile of married women. It has also abolished the revival of the domicile of origin, and fixed the age of capacity for having an independent domicile at 18 years. In addition, the legislation clarifies the dependent domicile of children in cases where the parents live separately and apart. The child will, generally speaking, follow the domicile of the parent with whom the child has their principal home.244 The result is to bring about uniform rules designed to avoid a situation in which a person might have a certain domicile for one purpose or in relation to one jurisdiction, and a different domicile in relation to another. This has always been a problem in a federation such as Australia, quite apart from difficulties in an international context. One of the most interesting provisions of the Domicile Act 1982 (Cth) deals with a ‘federal’ problem that could arise where an immigrant decides to settle in Australia and does so, but because of the migratory nature of their work does not at the same time acquire a domicile in any particular state or territory for the purpose of state or territorial law. The Act provides that, in such a case, a person is domiciled in that state or territory ‘with which he has for the time being the closest connection’.245

The Family Courts 4.111 Chapter 1 referred to the creation and structure of the Family Court of Australia: see 1.44–1.48. Earlier in this chapter, we saw that, in addition to the [page 218] Family Court of Australia, there are state courts that exercise

federal jurisdiction over family law proceedings in some circumstances: see 4.72. Since the creation of the Federal Circuit Court of Australia246 in 1999 (see 4.114–4.115), federal jurisdiction over family law proceedings has also been vested in that court. The FLA confers federal jurisdiction over a range of matters on these courts, at times referred to collectively as ‘the family courts’. Section 39 confers jurisdiction in ‘matrimonial causes’ (defined in s 4(1)) on specified courts. In the chapters that follow, reference is made to the specific provisions of the FLA that confer the relevant jurisdiction. For example, the matrimonial causes for proceedings between the parties to a marriage or by the parties to a marriage for a divorce order or a decree of nullity (s 4(1)(a)), or for a declaration as to the validity of marriage (s 4(1) (b)), are considered in Chapter 6. In relation to property proceedings, ‘matrimonial causes’ (for proceedings between the parties to a marriage) and ‘de facto financial causes’ (for proceedings between de facto parties) are considered in Chapter 12. Jurisdiction over matters arising under Pt VII of the FLA is conferred by s 69H, which is considered in Chapter 8. 4.112 There are a number of additional requirements that must be satisfied in order to establish that the court has jurisdiction under the FLA to hear and determine a matter. These requirements vary depending on the nature of the proceedings and are referred to in each of the chapters of this book where they are relevant. In the discussion of domicile above, the principles by which a sufficient connection is established between an applicant and the court were identified. For example, in proceedings in which orders are sought by parties to a marriage and in validity proceedings, there are prescribed criteria of citizenship, ordinary residence or presence in Australia: see Chapter 6. In proceedings in relation to a de facto relationship, there are geographical requirements that must be satisfied before a court has jurisdiction to make orders relating to maintenance (s 90 SD): see Chapter 10. There are also time limits within which proceedings under the FLA (in particular,

financial proceedings) must be commenced (s 44), which are referred to in the relevant chapters of this book.

The Family Court of Australia 4.113 As discussed in Chapter 1, the FLA set up the Family Court of Australia as a federal superior court of record, consisting of a Chief Justice, Deputy Chief Justice, and other judges.247 The Family Court has an appeal division and a general division, with an original and an appellate jurisdiction. The Family Court [page 219] has jurisdiction in all matters under the FLA, and in most matters under the Marriage Act 1961 (Cth). The Act applies to the federal territories (the Australian Capital Territory and the Northern Territory), and to Norfolk Island, Christmas Island and the Cocos (Keeling) Islands.248 The Commonwealth Parliament has plenary powers over territories by virtue of s 122 of the Constitution. Accordingly, the jurisdictional limitations to which the Family Court is subject by reason of the Constitution, discussed above, do not apply. The Family Court’s jurisdiction in these territories (other than the Northern Territory) extends to matters that would require a referral of power by a state, including adoption and the status of an ex-nuptial child.249

The Federal Circuit Court of Australia 4.114 Notwithstanding attempts over the years to make the Family Court of Australia’s processes simple, there were still concerns about the complexity of proceedings, time delays and costs. In the late 1990s, the Howard Government decided that simple matters of federal jurisdiction, including family law

matters, would be better dealt with in a new, lower-level federal court. The Federal Circuit Court250 was established under the Federal Circuit Court Act 1999 (Cth) and commenced operation in July 2000.251 It is a separate court of record established under Ch III of the Constitution. The judges in the Federal Circuit Court are considered equivalent in status to judges in state District or County Courts. Although the court historically used the infrastructures of the Family Court and the Federal Court, the Federal Court now administers a single federal courts infrastructure.252 4.115 The family law jurisdiction Federal Circuit Court is concurrent Court.253 The Federal Circuit Court jurisdiction in any family law area, 2003, all divorce applications must be Court.254

that is conferred on the with that of the Family does not have exclusive although since November filed in the Federal Circuit

[page 220] Where there are more complex matters filed in the Federal Circuit Court, they can be transferred to the Family Court and, similarly, there are provisions for the transfer of less complex matters from the Family Court to the Federal Circuit Court.255 The Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court have published a ‘protocol’ for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them.256 The protocol may on occasions give way to the imperatives of where a case can best be heard, and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case.257 As a general rule, if judicial resources permit, matters should be filed and/or heard in the Federal Circuit Court.258 However, if any one

of the following circumstances applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court: 1.

International child abduction.

2. 3.

International relocation Disputes as to whether a case should be heard in Australia.

4.

Special medical procedures (of the type such as gender reassignment and sterilisation). Contravention and related applications in parenting cases relating to orders which have been made in [Family Court] proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.

5.

6.

7. 8.

Serious allegations of sexual abuse of a child warranting transfer to the Magellan list [see 3.54] or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court. Complex questions of jurisdiction or law. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.259

Proceedings cannot be instituted in one court if there is an associated matter pending before the other court.260 There is no power to transfer applications between the Federal Circuit Court and a state or territory court of summary jurisdiction. [page 221] Since Western Australia already has its own Family Court, the Federal Circuit Court in that state does not hear family law matters.

The Family Court of Western Australia 4.116 On the commencement of the FLA on 5 January 1976, the Family Court of Western Australia was established by the government of that state. As discussed at 4.73, s 41 of the Act

enables any state to establish its own state family court, at the expense of the Commonwealth,261 but only Western Australia has taken up the option. The court is presided over by a Chief Judge who has the status of a Supreme Court judge, and other judges who have the status of District Court judges.262 The qualifications of these judges are similar to those of judges of the Family Court of Australia.263 There is the further provision for a retirement age of 70 years.264 Western Australian legislation also provides that in its non-federal jurisdiction the court shall apply principles similar in their terms to those expressed in s 43 of the FLA.265 4.117 The Western Australian Act introduced an innovation whereby judges of the Family Court of Western Australia should be able to hold dual or concurrent appointments as judges of the Family Court of Australia.266 The provision was reciprocated under amendments effected by the Family Law Amendment Act 1976 (WA).267 It enables judges of the Family Court of Western Australia to share in the appellate work of the Family Court of Australia. Appeals in relation to federal jurisdiction are governed by the FLA and lie to the Family Court of Australia. Where an appeal from the Family Court of Western Australia concerns a matter of state jurisdiction, the appeal lies to the Western Australian Supreme Court of Appeal. 4.118 The Western Australian Act also provides for the appointment of acting judges.268 The expedient of appointing acting judges is common enough in state courts, but was never available to the Commonwealth because it was incompatible with life tenure. The advantage of appointing acting judges lies in being able to deal with temporary backlogs and arrears of work, while not increasing the membership of the bench on a permanent basis. [page 222]

Appeals The nature of appeals 4.119 Much of the jurisdiction of the family courts is discretionary. This has been one of the grievances of many who have been affected by its decisions: that it was difficult or impossible to predict what the court was going to do, for instance in a property matter, because of the very flexibility of its jurisdictional guidelines. This is one of the characteristics of common law jurisdictions. A statute (such as the FLA) will lay down some general guidelines and leave it to the court to deal with particular cases according to the circumstances of the case. The well-known American jurist Roscoe Pound has pointed to the complexity of modern life and the variability of its circumstances, which make it impossible to attempt to reduce to a body of strict legal rules the prescriptions that it is necessary or desirable to apply to human conduct in all possible situations.269 As Pound has also said, ‘the common law is always found and made with reference to actual controversies. It is not declared in the abstract except in relatively rare cases by legislation’.270 4.120 Appeals have sometimes been characterised as falling into two classes. One is simply a rehearing provided by statute, as in the case of appeals from courts of summary jurisdiction. The other is an appeal on questions of law. This is the kind of appeal that may be heard by the High Court or the Full Court of the Family Court. Many of these involve weighty legal arguments and are reported in law reports. In an appeal (other than one from a court of summary jurisdiction), the FLA provides that the Full Court must ‘have regard to the evidence in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact’.271

In interpreting the potential to allow fresh evidence, a majority of the High Court has confirmed that the Full Court must still be satisfied that an error exists, and it is not open to the Full Court to exercise its discretion on the basis that a new trial could or might result in a different order.272 Among the most important grounds of appeal are appeals against the exercise of a judge’s discretion. Many provisions of the FLA require an exercise of discretion by the judge. The classic view of the judicial function is that it consists of finding the facts, ascertaining the relevant law and then applying the law to the facts as found. If the judge gets the law wrong, then there is normally a fairly straightforward case of error of law. However, in most cases the process depends [page 223] on the judge’s perception, not only of the facts, but also as to the application of the law to the facts. 4.121 Legislation normally spells out, with as much precision as possible, what the legislature intends a court to do in a particular set of circumstances. Unfortunately, it is often not possible to anticipate in detail the great variety of human experience. A better alternative to attempting to specify in detail the many situations that may be encountered is to leave as much as possible to the judge, laying down only a set of prescribed considerations. The judge then has a discretion as to the course that the court should adopt, provided those considerations are taken into account. A good example of a legislative provision of this kind occurs in s 65D(1) of the FLA in relation to parenting orders, where the court is given power to make such parenting orders ‘as it thinks proper’. However, this power is ‘subject to this Division’: Pt VII Div 6. Thus the power is not at large. The fact that the court ‘may’ make such orders indicates that an exercise of discretion is involved. Other

examples, dealing respectively with maintenance and property, are ss 74 and 79 of the Act. 4.122 Accordingly, a great deal of discretion is left to the judge when dealing with a particular matter. Human perception is variable, and in many situations some latitude must exist in assessing a particular problem. Judge A may come to a particular solution, and Judge B to a somewhat different one, but there may be a degree of latitude as to the differences between them before it can be said that one or other decision is actually wrong. It is nevertheless essential for a mechanism to exist whereby erroneous decisions can be rectified. To take into account any legitimate variations between the decisions of different judges, appellate courts have devised rules to enable this to be done. A number of leading cases have laid down the details of this mechanism.273 The leading Australian case on this subject is House v The King:274 see 4.124. 4.123 It is well established that an appellate court cannot simply substitute its decision in place of the decision that has been appealed. To reverse a decision on appeal, it is necessary to show that the primary judge made an error, and to demonstrate what that error was. However, it is not always possible to demonstrate precisely where the error complained of lies. To deal with this situation, the appellate courts have devised an ingenious formula. If the decision under appeal is so manifestly or obviously unjust that the court below must have made a mistake, even if the precise nature of the mistake cannot be identified, an appellate court may overturn it and substitute [page 224] its own judgment for that of the court below, or return it to the

court below with a specific direction. This latter expedient is appropriate where additional facts are required to be ascertained. 4.124 The principles involved were well described by the High Court in the 1936 case of House v The King275 in the following terms: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error had been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.276

These principles also govern the family law jurisdiction. The above passage from House was cited by the Full Court of the Family Court in the 1976 case of Sanders v Sanders.277 It should be added that in relation to children, the overriding principle is always the welfare (or the best interest) of the child.278 Thus, it is suggested, whether the principles in House can or cannot be satisfied, if the child’s best interest demands a different approach, it must influence the course that an appellate court should pursue. 4.125 In the 1984 case of Mallet v Mallet,279 the High Court discussed the principles to be followed in appeals. An earlier High Court decision, Lovell v Lovell,280 was cited. Discussion in that case considered whether no weight, or no sufficient weight, had been given to relevant considerations by the primary judge. [page 225]

Even if there had been no exclusion of relevant considerations, or an admission of irrelevant considerations, an appellate court would interfere if no adequate weight had been given to those relevant considerations, amounting to a failure to exercise the discretion entrusted to the court.281 Norbis v Norbis282 provides a most helpful discussion of the principles involved in exercising a discretionary jurisdiction and the development of judicial guidelines. Commenting on House, the High Court (Mason and Deane JJ) discussed the meaning of ‘discretion’: Here the order is discretionary because it depends on the application of a very general standard — what is ‘just and equitable’ — which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.283

These principles, summarised by Warnick J in G v G,284 have been described more recently by the Full Court (Finn, May and Murphy JJ) in Norman v Norman285 as ‘well settled, and of long standing’.286 Norbis also raised the question of the extent to which superior appellate courts can create ‘binding rules’ or ‘legitimate guidelines’ that limit, or guide, the exercise of discretion. Consistency in decision-making — even where a discretion is being exercised — is highly desirable and rules or guidelines would assist in this regard. For this reason, a majority of the High Court (Mason, Deane and Brennan JJ) held in Norbis that ‘legitimate guidelines’ are permissible. However, the question of the existence and application of such guidelines has proved to be a difficult matter.

Full Court of the Family Court of Australia 4.126

A Full Court consists of three or more judges of the Family

Court of Australia. Since the 1983 amendments, the Family Court has been organised into two Divisions, the Appeal Division and the General Division.287 The membership of the Appeal Division includes the Chief Judge, the Deputy Chief Judge and any other judges assigned by the Governor-General.288 The [page 226] principles under which the Full Court deals with appeals were discussed earlier in this chapter: see 4.120–4.125.

Appeals from the Federal Circuit Court of Australia (and the Magistrates Court of Western Australia) 4.127 Section 94AAA provides that an appeal lies to the Family Court from a decision of the Federal Circuit Court and also from a decision of the Magistrates Court of Western Australia constituted by a Family Law Magistrate. Appeals from the Federal Circuit Court and the Magistrates Court of Western Australia may also be heard by a single judge where the Chief Judge considers it ‘appropriate for the jurisdiction of the Family Court’.289 While this is often done in appeals from interim decisions, appeals from the Federal Circuit Court are now generally heard by a Full Court constituted by three judges. If a single judge has exercised appeal jurisdiction, there is no further appeal available from that decision.290 Section 96 of the FLA provides that appeals lie from a decree of a court of summary jurisdiction to the Family Court. Such appeals are in fact heard by a single judge of the court. An appeal from a court of summary jurisdiction proceeds ‘by way of a hearing de novo’, but the court may receive any record of evidence given, as well as affidavits and exhibits received in the court below.291

On determining the appeal, the court may affirm, reverse or vary the decree being appealed.292 Similarly, where an appeal from the Federal Circuit Court is determined, regardless of whether it was determined by a single judge of the Family Court (sitting as the Full Court) or the Full Court itself, the court may affirm, reverse or vary the decree or decision being appealed and may also order a rehearing if appropriate.293 Although the 1982 Full Court decision in Robinson & Willis294 was unanimous, there were some conflicting dicta as to the nature of an appeal from a court of summary jurisdiction under s 96. Asche J commented that the word ‘appeal’ (as used in s 96) is capable of different meanings. His Honour referred to the 1931 High Court decision in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan,295 where ‘appeal’ was used in three different senses: first, rehearing; second, review of a question of law; and third, review of facts as well as law relating to the materials before the court below. Asche J pointed out that ‘rehearing’ also had two different meanings.296 The first meant that there was a review of all the evidence, but no fresh evidence [page 227] was taken. Section 94 appeals to the Full Court from a single judge fell into that category. Such an appeal of course also involves questions of law. The second meaning referred to a complete rehearing de novo, as provided in s 96. The notice of appeal in effect wipes the slate clean. The judge hearing the appeal is to be in exactly the same position as was the court appealed from, and decides the matter on the basis of all the evidence given at this level. Counsel can, of course, make legal submissions, but these may or may not be the ones used at first instance.

Fogarty J, while agreeing with the decision, took a somewhat different view of the nature of a rehearing, namely that it ought not to be characterised as an appeal, but as a process enabling a party to have a second chance of a hearing on the merits.297 Nothing, it is suggested, turns on these distinctions, which were only raised because the original order had been made by consent.

Appeals from the Family Court of Australia and the Family Court of Western Australia (or a state and territory Supreme Court) 4.128 Under s 94 of the FLA, appeals from a single judge of the Family Court, or of a family court of a state (Western Australia being the only one), or of a state or territory Supreme Court exercising jurisdiction under the Act, lie to a Full Court of the Family Court. Similarly, as discussed above, appeals lie to the Full Court of the Family Court from the Federal Circuit Court (unless the Chief Judge considers the matter should be heard by a single judge, in which case any further appeal goes to the High Court).298 Appeals are generally ‘as of right’, although leave to appeal to the Full Court may be needed for an interlocutory decree that is not in relation to a child welfare matter.299 There is also provision, under s 94A(1), for a question of law to be referred to the Full Court by a judge at the request of at least one of the parties on a ‘case stated’. A similar procedure exists for a ‘special case’ involving a question of law to be referred to the Full Court from the Federal Circuit Court.300

Appeals to the High Court 4.129 In 2005, the FLA was amended to stipulate that only ‘by special leave of the High Court’ does an appeal lie from the Family Court to the High Court.301 The granting of special leave is very rare and would need to involve an important question of law and public interest. Prior to that amendment, an appeal could also lie

if the Full Court of the Family Court had granted a ‘certificate’ specifying the terms of an ‘important question of law or of public interest’.302 Despite this [page 228] restriction, the High Court can review a decision of a judge of the Family Court by means of the prerogative writs; for example, prohibition,303 mandamus304 or certiorari.305 In R v Cook; Ex parte Twigg,306 however, the High Court disapproved the unnecessary recourse to this jurisdiction when the remedy of an appeal to the Full Court of the Family Court was available. 1.

See Attorney-General for New South Wales v Brewery Employees’ Union of New South Wales (the Union Label case) (1908) 6 CLR 469 at 611 per Higgins J; R v Brislan; Ex parte Williams (1935) 54 CLR 262 at 282 per Rich and Evatt JJ. In Brislan, the court, after quoting from a United States Supreme Court decision, stated (at 282) that the ‘powers thus granted by the Constitution … keep pace with the progress of the country and adapt themselves to the new developments of time and circumstances’.

2. 3.

(1999) 198 CLR 511. Ibid at 553–4.

4. 5.

Ibid. Marriage Act 1961 (Cth) s 5 (as amended by the Marriage Amendment Act 2004 (Cth)).

6. 7.

[2013] HCA 55; (2013) 250 CLR 441; (2013) 304 ALR 204. Marriage Equality (Same Sex) Act 2013 (ACT).

8.

Commonwealth v Australian Capital Territory [2013] HCA 55 at [61]; (2013) 250 CLR 441; (2013) 304 ALR 204. [2013] HCA 55 at [57].

9. 10. 11.

See Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130. Commonwealth v Australian Capital Territory [2013] HCA 55 at [33]; (2013) 250 CLR 441; (2013) 304 ALR 204.

12. 13.

Ibid at [38]. See Vitzdamm-Jones v Vitzdamm-Jones; St Clair v Nicholson (1981) 148 CLR 383 at 402 (per Barwick CJ); at 416 (per Stephen J). See also P Lane, ‘Federal Family Powers’ (1978) 52 Australian Law Journal 121; (1981) 55 Australian Law Journal 685; H Finlay, ‘A Commonwealth “Family Law”?’ (1982) 56 Australian Law Journal 119.

14.

(1981) 148 CLR 383 at 402.

15.

See Attorney-General (Vic) v Commonwealth (the Marriage Act case) (1962) 107 CLR 529 at 582 (per Windeyer J). Ibid at 560 (per Taylor J); at 572 (per Menzies J). See also Russell v Russell (1976) 134 CLR 495 at 539–40 (per Mason J).

16. 17. 18. 19.

20.

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 494 (per Gibbs J); cf Fencott v Muller (1983) 152 CLR 570. J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 ed), p 608. Ibid (referring to the Australian Federal Convention, Official Record of the Debates of the Australasian Federal Convention, Second Session, Sydney, 2nd to 24th September, 1897, Government Printer, Sydney, 1897, pp 1077–82). J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 ed), p 610.

21. 22.

Ibid, p 611. Ibid, pp 611–12.

23.

H Moore, The Constitution of the Commonwealth of Australia, 2nd ed, CF Maxwell (G Partridge & Co), Melbourne, 1910, p 475. J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 ed).

24. 25. 26.

Matrimonial Causes Act 1945 (Cth) ss 6 and 11. Matrimonial Causes Act 1955 (Cth) s 5 (inserting a new s 12A into the 1945 Act).

27. 28.

See Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130 at 133 per Wilde JO. See Crimes Act 1900 (NSW) s 92; Criminal Code 1899 (Qld) s 360; Criminal Law Consolidation Act 1935 (SA) s 78; Crimes Act 1958 (Vic) s 64.

29.

The dissenting justices were Dixon CJ and Windeyer J (although Windeyer J did find that s 91 was a valid exercise of Commonwealth power). (1962) 107 CLR 529 at 560.

30. 31. 32.

Ibid at 579. J Quick and R Garran, Annotated Constitution of the Commonwealth of Australia, Legal Books, Sydney, 1976 (reprint of 1901 edition), p 608.

33. 34.

(1962) 107 CLR 529 at 560–1. Ibid at 572.

35. 36.

Ibid at 574. Ibid at 580.

37. 38.

H Moore, The Constitution of the Commonwealth of Australia, 2nd ed, CF Maxwell (G Partridge & Co), Melbourne, 1910, p 474. (1962) 107 CLR 529 at 554.

39. 40.

Ibid at 581. Ibid at 560.

41.

Ibid at 560–1.

42.

Ibid at 581 per Windeyer J.

43. 44.

Ibid at 544. Ibid at 549.

45. 46.

Ibid at 554 per Kitto J. Ibid at 564 per Taylor J.

47. 48.

Ibid at 547. Ibid at 556.

49. 50.

Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495. Ibid at 539 per Mason J.

51. 52.

Fisher v Fisher (1986) 161 CLR 438 at 453 per Mason and Deane JJ. Ibid at 452.

53.

54.

See, for example, Attorney-General for New South Wales v Brewery Employees’ Union of New South Wales (the Union Label case) (1908) 6 CLR 469 at 600 per Higgins J; King v Jones (1972) 128 CLR 221 at 229 per Barwick CJ; Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 553–4 per McHugh J. (1964) 110 CLR 353.

55. 56.

Ibid at 369. Ibid at 366; see also at 361–2 per Kitto J.

57.

Ibid at 379 (adopting a phrase of Higgins J in Attorney-General for New South Wales v Brewery Employees’ Union of New South Wales (the Union Label case) (1908) 6 CLR 469). Jactitation, in common law jurisdictions, refers to the maliciously boasting or giving out by one party that he or she is married to the other party.

58. 59. 60.

Section 6. Halsbury’s Laws of England, 4th ed, vol 13, Butterworths, London, 1973, [504], n 1; W Jowitt et al, Dictionary of English Law, 2nd ed, vol II, Sweet & Maxwell, London, 1977, p 1162.

61. 62.

Lansell v Lansell (1964) 110 CLR 353 at 363 per Kitto J. See Green v Lord Penzance (1881) 6 App Cas 657 at 671 (as cited by Starke J in Ex parte Walsh & Johnson; Re Yates (1925) 37 CLR 36 at 131).

63.

64.

Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265–6; cf Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (particularly per Mason J at 506ff). See Matrimonial Causes Rules r 195.

65. 66.

Matrimonial Causes Act 1959 (Cth) s 89(2), (4). See Lansell v Lansell (1964) 110 CLR 353.

67. 68.

(1964) 110 CLR 353. For principal relief, including divorce, see Matrimonial Causes Act 1959 (Cth) s 5(1) (para (c) of the definition of ‘matrimonial cause’).

69. 70.

(1964) 110 CLR 353 at 361–2. Ibid at 362.

71. 72.

(1967) 116 CLR 366. Ibid at 379 per Windeyer J.

73. 74.

Cf Lansell v Lansell (1964) 110 CLR 353. (1976) 134 CLR 495.

75. 76.

FLA s 39. FLA s 41. Western Australia is the only state to have created its own court.

77. 78.

See Commonwealth of Australia Gazette S86. Le Mesurier v Connor (1929) 42 CLR 481 at 522 per Starke J; cf Kotsis v Kotsis (1970) 122 CLR 69.

79. 80.

Ibid. See Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 at 532.

81. 82.

FLA s 4(1)(c)(iii). (1976) 134 CLR 495 at 538–9.

83. 84.

Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529. (1976) 134 CLR 495 at 538.

85. 86.

Ibid at 539–40. (1948) 68 CLR 87.

87. 88.

Ibid at 110. (1976) 134 CLR 495 at 510.

89. 90.

Ibid. Ibid.

91. 92.

Ibid at 538. (1986) 161 CLR 438 at 453 per Mason and Deane JJ.

93. 94.

(1976) 134 CLR 495 at 542. (1981) 149 CLR 227.

95.

Fisher v Fisher (1986) 161 CLR 438 at 453 per Mason and Deane JJ; P v P (1994) 181 CLR 583. (1981) 149 CLR 227 at 248–9.

96. 97. 98.

See H Finlay, ‘A Commonwealth “Family Law”?’ (1982) 56 Australian Law Journal 119. (1993) 17 Fam LR 156; (1993) FLC ¶92-434.

99. Hunt v Hunt (2006) 36 Fam LR 64; [2006] FamCA 167. 100. Slazenger v Hunt (S108/2005); Lederer v Hunt (S109/2006) (1 September 2006), available at www.austlii.edu.au (accessed 30 November 2015). 101. (1987) 164 CLR 91. 102. (1982) 8 Fam LR 537 per Asche, Pawley and Emery SJJ. 103. See the Commonwealth Powers (Family Law — Children) Acts of the referring states, and the assumption of that power by the Commonwealth in the Family Law Amendment Act 1987 (Cth).

104. (1987) 164 CLR 91 at 115 per Mason CJ and Deane J; at 131 per Gaudron J. 105. Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495. 106. (1978) 143 CLR 410. 107. (1981) 148 CLR 383. 108. (1982) 150 CLR 615. 109. (1984) 156 CLR 170. 110. (1985) 156 CLR 228. 111. (1985) 156 CLR 249. 112. (1986) 161 CLR 376. 113. For anyone who wishes to make a deeper study of these issues, refer to Chapter 2 (2.43–2.70) of the third edition of this book. 114. A Dickey, Family Law, 6th ed, Lawbook Co, Sydney, 2014, p 47. 115. (1990) 14 Fam LR 427; (1991) FLC ¶92-193. 116. (1992) 175 CLR 218. 117. (1994) 181 CLR 583. 118. Now the Guardianship Division of the New South Wales Civil and Administrative Tribunal. 119. Note that former s 60H of the Act provided that a court could not, under the FLA, make an order (except under former Div 6, which deals with maintenance) about a child who is under guardianship or custody or care and control as a person under the child welfare laws, unless: (a) the order is expressed to come into effect when the child ceases to be under such guardianship, custody or care and control; or (b) with the written consent of a child welfare officer. A similar provision currently appears in FLA s 69ZK. 120. (1994) 181 CLR 583 at 592, 608 per Mason CJ, Deane, Toohey and Gaudron JJ; at 637 per McHugh J. 121. Ibid at 611 per Brennan J; at 632 per Dawson J. 122. Ibid at 599. 123. Ibid. 124. Ibid at 600–1. 125. Ibid at 607. 126. Ibid at 611. 127. Ibid at 626. 128. Ibid. 129. Ibid at 629. 130. Ibid. 131. Ibid at 630. 132. Ibid. 133. Ibid at 631. 134. (2004) 219 CLR 365; (2004) 31 Fam LR 339; FLC ¶93-174.

135. Migration Act 1958 (Cth). 136. B (Infants) & B (Intervener) v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 30 Fam LR 181; (2003) FLC ¶93-141; [2003] FamCA 451. 137. Minister for Immigration & Multicultural & Indigenous Affairs v B (2004) 219 CLR 365. 138. GDPW & IDPW (2004) 33 Fam LR 338 at 339–40; FLC ¶93-206. 139. Re Marion (1990) 14 Fam LR 427; (1991) FLC ¶92-193. 140. Minister for Immigration & Multicultural & Indigenous Affairs v B (No 3) (2004) 31 Fam LR 339 at 346–9; FLC ¶93-174. 141. Secretary of Department of Health & Human Services v Ray (2010) 45 Fam LR 1; [2010] FamCAFC 258. 142. Ibid. See also (2004) 219 CLR 365. 143. (2004) 219 CLR 365 at [52]. 144. [2009] FamCA 219. 145. Ibid at [78]. 146. Secretary of Department of Health & Human Services v Ray (2010) 45 Fam LR 1. 147. Ibid at 18. For comment, see B Fehlberg, ‘Parenting Disputes, State Protection Laws and an Attempt at Lateral Thinking’ (2011) 25 Australian Journal of Family Law 15. 148. See s 26 (assimilating the position of a married woman to that of a ‘femme sole’, so long as a decree for judicial separation was in force). 149. See, for example, Married Persons (Equality of Status) Act 1996 (NSW) s 5; Marriage Act 1958 (Vic) s 160. 150. The potential for argument as to the constitutional validity of ss 119 and 120 arose in Magill v Magill (2006) 226 CLR 551. In view of the High Court’s decision on the matter under appeal, however, the validity of appellant’s constitutional challenge to these two sections did not need to be decided. 151. See Commonwealth Constitution s 122; FLA s 31(1)(c). See also Spratt v Hermes (1965) 114 CLR 226. 152. FLA s 39(5). 153. See Commonwealth of Australia Gazette S86, 27 May 1976. 154. FLA s 39(6). 155. FLA s 39(7). 156. See Commonwealth of Australia Gazette S86, 27 May 1976. 157. Family Court Act 1997 (WA) s 5(1) and Div 2. 158. FLA s 41. 159. FLA s 41(4)(a). 160. FLA s 41(4)(b). 161. FLA s 41(4)(c). 162. FLA s 41(1). 163. FLA s 22(2A) and (2B). 164. D O’Neil (Minister for Works), Second Reading Speech, Parliamentary Debates,

Western Australia, 21 October 1975, p 3606. 165. It was assented to on 1 December 1975 and proclaimed on 4 May 1976. 166. It was assented to on 10 December 1997 and proclaimed on 25 September 1998. It was further amended by the Family Court Amendment Act 2002 (WA) that introduced, among other things, a new Pt 5A in relation to de facto relationships. 167. Family Court Act 1997 (WA) s 9 (and see generally, Pt 2). 168. Family Court Act 1975 (WA) s 27(1)–(2); now see Family Court Act 1997 (WA) ss 30–31. 169. Joint Select Committee Report, 1980, Dissenting Report of Senator Missen, vol 1, pp 204, 208. 170. Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495; for a discussion, see 4.31ff. 171. (1979) 141 CLR 504. 172. Ibid at 509. 173. See Federal Court of Australia Act 1976 (Cth) s 32. 174. See Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. 175. Smith v Smith (1986) 161 CLR 217. 176. A Dickey, Family Law, 6th ed, Lawbook Co, Sydney, 2014, p 105. 177. (1981) 148 CLR 457. 178. Ibid at 475. 179. Breaches of the Trade Practices Act 1974 (Cth) ss 52 and 53 were alleged; now see ss 18 and 29 of the Australian Consumer Law as contained in Sch 2 of the Competition and Consumer Act 2010 (Cth). 180. See Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457; Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261; Fencott v Muller (1983) 152 CLR 570. 181. (1983) 154 CLR 261. 182. Ibid at 293. 183. (1999) 198 CLR 511. 184. Fencott v Muller (1983) 152 CLR 570. 185. (1999) 198 CLR 511 at 585 per Gummow and Hayne JJ. 186. (1986) 161 CLR 217. 187. Now see s 95 of the Succession Act 2006 (NSW). 188. See Re Wakim; Ex parte McNally (1998) 198 CLR 511 at 563 per McHugh J; Gummow and Hayne JJ at 586–8; Callinan J at 624; cf Kirby J dissenting at 617–18. 189. (2001) 27 Fam LR 484; FLC ¶93-069. 190. (2001) 27 Fam LR 484 at 495. 191. Ibid. 192. (2001) 28 Fam LR 443; (2002) FLC ¶93-091. 193. (2001) 28 Fam LR 443 at 476. 194. Ibid at 476–7.

195. Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. 196. Ibid at 476 (the court referred in particular to the High Court’s decision in Smith v Smith (1986) 161 CLR 217, where arguably its decision was limited to the application of a specific state statute). 197. Ibid. 198. (1984) 9 Fam LR 850; FLC ¶91-573. 199. (1985) 10 Fam LR 283; FLC ¶92-604. 200. Smith v Smith (1986) 161 CLR 217. 201. (2001) 28 Fam LR 443 at 478. 202. Ibid. 203. (2009) FLC ¶93-395; [2009] FamCAFC 27. 204. Ibid at [27], citing Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559; Houghton v Arms (2006) 225 CLR 553. See also Ruane & Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369 at [23]. 205. (2001) 28 Fam LR 443 at 479. 206. Hunt v Hunt (2006) 36 Fam LR 64, approved B Pty Ltd v K (2008) 219 FLR 107; [2008] FamCAFC 113. 207. L Aitken, ‘Discretion, Power and the “Accrued” Jurisdiction of the Family Court’ (2009) 83 Australian Law Journal 694. 208. See, for example, Bergman v Bergman [2009] FamCAFC 27; Ruane & Bachmann-Ruane (Accrued Jurisdiction) [2012] FamCA 369. For further examples, see Aitken, ibid. 209. (2009) 236 FLR 272; (2009) 42 Fam LR 319; (2009) FLC ¶93-415; [2009] FamCAFC 207. 210. (2009) FLC ¶93-415 at [52]. 211. Klintock v Ferder (2010) 43 Fam LR 135; [2010] FamCA 162. 212. Commonwealth Powers (Family Law — Children) Act 1986 (NSW); Commonwealth Powers (Family Law — Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas); Commonwealth Powers (Family Law — Children) Act 1986 (Vic). 213. Cf Commonwealth Powers (Family Law) Act 1987 (Tas) s 3(4). 214. Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003 (Qld); Commonwealth Powers (De Facto Relationships) Act 2009 (SA); Commonwealth Powers (De Facto Relationships) Act 2006 (Tas); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic). 215. Commonwealth Powers (De Facto Relationships) Act 2006 (WA). 216. For some writings on the cross-vesting scheme, see C Baker, ‘Cross-vesting of Jurisdiction between State and Federal Courts’ (1987) 14 University of Queensland Law Journal 118; S O’Ryan, ‘Cross-vesting: An Early Report on Progress’ (1989) 3 Australian Journal of Family Law 1; K Mason and J Crawford, ‘The Cross-vesting Scheme’ (1988) 62 Australian Law Journal 328; Constitutional Commission, Final Report, 1988, pp 371–3; D Kovacs, ‘Cross-vesting of Jurisdiction: New Solutions or New Problems’ (1988) Melbourne University Law Review 669; D St L Kelly and J

Crawford, ‘Choice of Law under the Cross-vesting Legislation’ (1988) 62 Australian Law Journal 589; G Griffith, D Rose and S Gageler, ‘Choice of Law in Cross-vested Jurisdiction: A Reply to Kelly and Crawford’ (1988) 62 Australian Law Journal 698; G Griffith, D Rose and S Gageler, ‘Further Aspects of the Cross-vesting Scheme’ (1988) 62 Australian Law Journal 1016; G Lindell, ‘The Cross-vesting Scheme and Federal Jurisdiction Conferred upon State Courts by the Judiciary Act 1903 (Cth)’ (1991) 17 Monash Law Review 64; R Chisholm, ‘Cross-vesting and Family Law: A Review of Developments’ (1991) 7 Australian Family Lawyer 15. 217. See Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT); Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); Jurisdiction of Courts (Cross-vesting) Act 1987 (NT); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic); Jurisdiction of Courts (Crossvesting) Act 1987 (WA). The federal, state and territory complementary legislation all have the same date of commencement (1 July 1988), except for the Australian Capital Territory (6 September 1993). 218. Explanatory Memorandum, Jurisdiction of Courts (Cross-vesting) Bill 1987 (Cth), House of Representatives, 1987, [6]. 219. (1990) 13 Fam LR 853; FLC ¶92-139. 220. Ibid at 863–7. 221. Ibid at 867–8. 222. Referring to Bankinvest AG v Seabrook (1988) 14 NSWLR 711 and Berry v Wakley & Black (1988) 12 Fam LR 451. 223. (1997) 22 Fam LR 1; FLC ¶92-757. 224. (1997) 22 Fam LR 1 at 9. 225. Ibid at 67. 226. (1998) 193 CLR 346. 227. Ibid per Brennan CJ, Toohey and Kirby JJ; Gaudron, McHugh and Gummow JJ dissenting. As the court was equally divided, it affirmed the decision of the Full Court of the Federal Court of Australia. 228. (1999) 198 CLR 511. 229. Australian Constitution s 51(xxxix). 230. Ibid s 51(xxxvii). 231. (1999) 198 CLR 511 at 578. 232. Ibid at 548. 233. Ibid at 548–9. 234. (2000) 204 CLR 158 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ; Kirby J dissenting. 235. See Le Mesurier v Le Mesurier [1895] AC 517. See also P Joske, Laws of Marriage and Divorce in Australia, 3rd ed, Butterworths, Sydney, 1952, p 17 (the third edition is cited here because it contains a good summary of the history of Australian divorce legislation). For an overview, see H Finlay, To Have But Not Hold — A History of Attitudes to Marriage and Divorce in Australia 1858–1975, The Federation Press,

Annandale, 2005. 236. See Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290. 237. Matrimonial Causes Act 1959 (Cth) s 23(4)–(5). 238. Ibid s 24(1). 239. Ibid s 24(2). 240. [1969] 1 AC 33. 241. FLA s 39(3)–(4). 242. FLA s 39(4). 243. FLA s 104. 244. See Domicile Act 1982 (Cth) s 9. 245. Ibid s 11. 246. In 2013, the name of the court was changed from the Federal Magistrates Court to the Federal Circuit Court: see Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth); Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth). 247. FLA ss 20 and 21. 248. FLA s 7. 249. FLA s 31. 250. Initially known as the Federal Magistrates Service. 251. In April 2013 the name of the court was changed from the Federal Magistrates Court to the Federal Circuit Court: see Federal Circuit Court of Australia Legislation Amendment Act 2012 (Cth) and Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth). 252. This change occurred on 1 July 2016: see Courts Administration Legislation Amendment Act 2016 (Cth). 253. See generally, FLA s 39. 254. See Family Court of Australia, Practice Direction No 6 of 2003. 255. See Federal Magistrates Act 1999 (Cth) ss 39–41; FLA s 33B. 256. See www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/corporate-information/protocol-for-division-of-work-fcoa-fcc (accessed 4 August 2015). 257. Ibid. 258. Ibid. 259. Ibid. 260. See Federal Magistrates Act 1999 (Cth) s 19; FLA s 33A(1). This does not apply to proceedings for a decree of dissolution of marriage or proceedings under FLA Pt VII Div 13A or under Pt XIII or XIIIA: see FLA s 33A(2). 261. See also Family Court Act 1997 (WA). 262. Family Court Act 1975 (WA) ss 15, 16; now see Family Court Act 1997 (WA) s 15 (as it relates to salaries and allowances). 263. FLA s 22(2); Family Court Act 1975 (WA) s 9; now see Family Court Act 1997 (WA)

s 11. 264. Family Court Act 1975 (WA) s 12(1); now see Family Court Act 1997 (WA) s 18(1). 265. Family Court Act 1975 (WA) s 28; now see Family Court Act 1997 (WA) s 37. 266. Family Court Act 1975 (WA) s 20; now see Family Court Act 1997 (WA) s 24. 267. FLA s 22(2A). 268. Family Court Act 1975 (WA) s 11; now see Family Court Act 1997 (WA) s 22. 269. R Pound, ‘Discretion, Dispensation and Mitigation: The Problem of the Individual Special Case’ (1960) New York University Law Review 925 at 926. 270. R Pound, ‘The Theory of Judicial Decisions’ (1923) 36 Harvard Law Review 940 at 947. 271. FLA s 93A. 272. CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ; Gaudron and Kirby JJ dissenting. 273. See, for example, Evans v Bartlam [1937] AC 473; Charles Osenton & Co v Johnston [1942] AC 130; Blunt v Blunt [1943] AC 517. 274. (1936) 55 CLR 499. 275. Ibid. 276. Ibid at 504–5 per Dixon, Evatt and McTiernan JJ. For an analysis of these principles, see H Finlay, ‘Judicial Discretion in Family and Other Litigation’ (1976) 2 Monash Law Review 221. 277. (1976) 1 Fam LR 11,433. 278. See Sutton & Sutton (No 2) (1976) 2 Fam LR 11,256; Daines & Daines (1985) 10 Fam LR 597. 279. (1984) 156 CLR 605. 280. (1950) 81 CLR 513. 281. See the opinions of Gibbs CJ and Mason J in Mallet v Mallet (1984) 156 CLR 605. 282. (1986) 161 CLR 513. 283. Ibid at 518. 284. [2004] FamCA 1179 at [82]–[86]. 285. [2010] FamCAFC 66. 286. Ibid at [18]. 287. FLA s 21A. 288. FLA s 22(2AA)–(2A). 289. FLA s 94AAA(3). 290. FLA s 94AAA(12). 291. FLA s 96(4)(a). 292. FLA s 96(4)(b). 293. FLA s 94AAA(6). 294. (1982) 8 Fam LR 131. 295. (1931) 46 CLR 73.

296. (1982) 8 Fam LR 131 at 133–4. 297. Ibid at 146–7. 298. FLA s 94AAA. 299. FLA s 94AA. See also Family Law Regulations reg 15A. 300. FLA s 94A(3). 301. FLA s 95 (as amended by the Family Law Amendment Act 2005 (Cth) s 3). 302. For a discussion, see DJL v The Central Authority (2000) 201 CLR 226 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. 303. R v Watson; Ex parte Armstrong (1976) 136 CLR 77. 304. R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504. 305. R v Cook; Ex parte Twigg (1980) 6 Fam LR 161; 147 CLR 15. 306. Ibid per Mason, Murphy and Wilson JJ in separate judgments.

[page 229]

5 MARRIAGE AND DE FACTO RELATIONSHIPS ___________________________

Introduction 5.1 Eekelaar has succinctly summarised the importance traditionally afforded to marriage by our society and its laws: The epicentre of family law has always evolved around the institution of marriage. Marriage is the basis of the legal family and has therefore provided the framework in which legal obligations of the adult parties towards each other and their children have been set.1

Over the centuries, marriage in UK, Australian and other societies has changed and developed from an institution utilised for economic purposes (among the wealthy for the transmission of property) into the modern conception of a union based on affection for the purposes of raising children and the mutual support, emotional as much as economic, of the partners. The nature of this evolution (overviewed in Chapter 1) and the explanations for it have been exhaustively canvassed (not with unanimity) by historians and others, and are beyond the scope of this present work.2 5.2

In earlier editions of this book it was observed that as society

changes, so does the law, which is a reflection of society’s views. The years separating the first and most recent editions of this book have witnessed the ever-increasing popularity and legal recognition of alternatives to traditional marriage, particularly in the form of stable de facto relationships between both oppositesex and same-sex couples. [page 230] Alternative grounds for recognition of personal relationships and relationship registration are now available in some states and territories (see 5.116).3 At the same time, the reservation of marriage to opposite-sex couples arguably renders marriage the ‘last frontier’ in Australia for same-sex relationship recognition.4 The contours of the same-sex marriage debate are laid out at 1.60–1.63 and the constitutional issues at 4.3. While marriage is only available to couples in opposite-sex relationships, legislation has been introduced throughout Australia over the last 20 years that brings the financial consequences of relationship breakdown for couples in opposite-sex and same-sex de facto relationships into line with those of married couples: see 5.91. The recent referral of this legislative power by all states (other than Western Australia) to the Commonwealth has taken this a step further, with the result that identical law applies to married couples and couples in de facto relationships in so far as maintenance and alteration of interests in property are concerned. These provisions are considered further in Chapters 10 and 12–15. This chapter first considers the nature, formation and recognition of marriage. It then examines the definition of ‘de facto relationship’ for the purposes of the Family Law Act 1975 (Cth) (FLA), and refers to state and territory legislation that provides for relationship registration and recognises other close and caring personal relationships. This reflects the three categories of relationship recognition that now exist in Australia: marriage,

non-marriage relationship registration and the presumptive recognition of non-formalised de facto relationships.5

Marriage Essential characteristics 5.3 The increasing legal recognition afforded to alternatives to formal marriage poses a fundamental question: what is ‘special’ about marriage in modern law? After all, it is clear that the increasing popularity of alternatives has not meant that marriage is an institution in danger of disappearing. Rather, with the ready availability of divorce, remarriage is a viable option for many people. This poses another fundamental challenge for family law: how to develop rules that regulate second and subsequent marriages as justly as the first. Particular issues have arisen in the context of rights and obligations towards step-children and in the distribution of income and property between first and subsequent families. [page 231] 5.4 What are the essential characteristics of marriage under current Australian law? In a legal sense, the answer to this question is simple. Section 5(1) of the Marriage Act 1961 (Cth) (the Marriage Act) provides: Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.6

This definition, a legislative adoption of the long-recognised common law definition of ‘marriage’, was inserted into the Marriage Act, somewhat controversially, in 2004. Whether the

addition was needed is debatable. Nevertheless, according to the Federal Attorney-General at the time, the Hon Philip Ruddock: Marriage is a central and fundamental institution in our society. It is vital to the stability of our society and provides the best environment for the raising of children. The Government has decided to take steps to reinforce the fundamental basis of the institution of marriage to reflect these views. The Government believes that the vast majority of Australians would agree that marriage is the union of a man and a woman — to the exclusion of all others — voluntarily entered into for life. The Government has decided it is time these words should appear in the formal definition of marriage in the Marriage Act and will amend the Act to achieve this result.7

It is worth noting that, despite this ‘new’ definition, s 46 of the Marriage Act has always required an authorised celebrant8 (other than a minister of religion) to inform those about to be married that: Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Moreover, s 43(1)(a) of the Family Law Act 1975 (Cth) (FLA) directs courts to have regard to the need to ‘preserve and protect the institution of marriage’, defining marriage in these terms. The common law origin of this definition of marriage is the celebrated statement made in 1866 by Wilde JO (later Lord Penzance) in Hyde v Hyde.9 That case concerned a petition presented in England by a husband for the dissolution of a Mormon marriage entered into with his wife in Utah. The Mormons at Utah allow polygamy and therefore at the time the [page 232] marriage was entered into it was potentially polygamous.10 In refusing to entertain the applicant’s petition for divorce on the basis that he was not validly married according to English law, Lord Penzance gave the now famous dictum11 on which the above definition and other statutory provisions are based.

The essential characteristics identified in this definition are discussed in what follows. The legal consequences for a marriage that does not meet these definitional requirements are considered in Chapter 6: see 6.105ff.

Monogamy 5.5 One essential characteristic of Australian marriage is that it is monogamous. This is reflected in the Marriage Act requirement that a person entering into marriage cannot already be married.12 As a result, no person in Australia has the capacity to enter into a polygamous marriage. Therefore, a polygamous marriage celebrated in Australia according to tribal custom between Indigenous Australians is a ‘complete nullity’13: see 5.9.

Polygamy 5.6 A different question nevertheless arises: will Australian law recognise as valid for any purposes a polygamous or potentially polygamous marriage entered into in an overseas country?14 Prior to statutory intervention, the definition in Hyde’s case (see 5.4) meant that a party to a polygamous marriage was denied access to the divorce jurisdiction of the English court, and this was subsequently extended to other forms of matrimonial relief.15 This position was originally adopted in Australia by the Matrimonial Causes Act 1959 (Cth).16 Nevertheless, foreign polygamous marriages were recognised at common law for some other purposes under state law, such as succession.17 5.7 The injustice of denying matrimonial relief to a party to a polygamous marriage contracted overseas, in any multicultural society with a high immigrant [page 233]

population, is self-evident. The rule has therefore been abolished by statute, in Australia and elsewhere. The Matrimonial Causes Act 1959 (Cth) was amended in 196518 to permit matrimonial relief (both principal and ancillary) to be granted in the case of marriages contracted overseas that were potentially polygamous. Subsequently s 6 of the FLA extended this permission to actual polygamous marriages contracted outside Australia. Similar provisions have been enacted in the UK19 and New Zealand.20 5.8 It is important to realise that s 6 of the FLA recognises polygamous marriages contracted outside Australia only for the purpose of proceedings under the Act. The operation of s 6 is saved by s 88E(4) of the Marriage Act (which was inserted by the Marriage Amendment Act 1985 (Cth)): This Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a State or Territory, that deems a union in the nature of a marriage to be a marriage for the purposes of the law in which the provision is included.

This saving provision is important, because s 88D(2)(a) appears otherwise to prohibit the recognition of polygamous marriages in Australia. In addition to recognition via s 6, such a marriage might also be recognised under the common law rules saved by s 88E (these provisions are discussed at 5.60–5.70). Section 88E(4) also saves any state laws that deem polygamous unions to be marriages; for example, for the purposes of succession.

Indigenous Australians — Aboriginal customary marriages 5.9 Section 88E(4) of the Marriage Act (unlike s 88E(3)) is not restricted to marriages contracted outside Australia. It will, therefore, preserve the operation of any laws that deem unions contracted within Australia to be marriages for any

Commonwealth or state law purposes. This is of potential importance for the recognition of Aboriginal customary marriages. Marriage of this kind has historically been granted very limited recognition.21 In 1986 the Australian Law Reform Commission (ALRC), in its report The Recognition of Aboriginal Customary Laws,22 recommended that customary marriages (which may be polygamous) be recognised in a wide range of situations, including legitimacy, adoption, fostering, child welfare laws, distribution of property on death, accident [page 234] compensation and social security, but that relief under the FLA be excluded. This approach (known as functional recognition) was preferred to the possibility of equating customary marriage to de facto marriage in state laws, on the basis of strongly negative views of that option held by Aboriginal people.23 The Western Australian Law Reform Commission, which subsequently undertook a review of customary law, pointed to the fact that ‘there has been limited administrative and legislative implementation of the ALRC’s recommendations’.24 In respect of recognising customary marriage, adoption is one area that has resulted in legislative amendment25 and there have been some administrative changes to the way social security departments treat such marriages.26 For many matters, of course, legislative change would need to be made by the states, because the matters fall within their legislative domain, and this appears to be the preference of the Commonwealth Government.27 To some extent, events have overtaken the ALRC’s recommendations.28 For example, modern de facto relationship legislation has for some years provided remedies to any couple falling within the relevant definition and meeting other jurisdictional requirements. The states (other than Western Australia) have referred their powers in respect of de facto property

and maintenance disputes to the Commonwealth, and the provisions of the FLA apply on the breakdown of de facto relationships. In Western Australia, state law applies to de facto relationships which, for family law purposes, is the same as the FLA: see 5.92. De facto legislation provides for the recognition of more than one de facto marriage, so the breakdown of a polygamous tribal marriage will attract the same relief. While this may alleviate the lack of access to financial relief for some Indigenous Australians, it does not of itself give expression to differing institutions of marriage, as one might expect, in a pluralistic racial society such as Australia.

A man and a woman 5.10 It is a requirement in Australian marriage law that the parties to a marriage are a man and a woman. This is clear from the definition of ‘marriage’ inserted into the Marriage Act in 2004 (see 5.4), the requirement in s 88EA of the Marriage [page 235] Act that a same-sex union must not be recognised as a marriage in Australia, and from references to marriage as a union between a man and woman in s 46 of the Marriage Act and s 43(1)(a) of the FLA. Section 88EA of the Marriage Act (see further, 5.73), which was added in 2004, provides: A union solemnised in a foreign country between: (a) a man and another man; (b) a woman and another woman;must not be recognised as a marriage in Australia.

5.11 These provisions confirm that Australian family law, in common with the historical practice overseas, has been reluctant to treat unions other than the traditional concept of a formal

union between a man and a woman, such as same-sex de facto relationships, as marriage. The calls for the recognition of samesex ‘marriage’ or ‘civil unions’ are now frequent and insistent, as discussed at 1.60–1.63. This follows many overseas jurisdictions according recognition to such unions, such as in a number of European and Scandinavian countries, Canada, some states of the United States and the UK.29 Since the High Court confirmed that the Federal Parliament has constitutional power to change the definition of marriage in Commonwealth v Australian Capital Territory,30 discussed at 4.3, the debate concerning the recognition of same-sex marriage by the law of marriage in Australia is a political, not a legal question.31 As mentioned at 1.63, there appears at present to be little political will in Australia at the federal level to change the law to permit same-sex marriage. 5.12 In the context of the legal recognition of same-sex marriage in Australia, the question had also arisen whether a post-operative transsexual could have a ‘change of sex’ by medical and surgical means recognised so as validly to contract marriage with a person of the opposite sex to the sex of transsexual reassignment, but of the same sex as a person’s sex at birth. The Attorney-General’s Department’s submission to the Senate Committee of Legal and Constitutional Affairs states on this point: It is the view of this Department that the marriage power in the Constitution is limited to the union of a female with a male. Our advice is that a union of a homosexual couple would not be covered by the power. It is the view of this Department that, in the context of a person’s entitlement to marry, a person cannot change his or her sex whether by surgery or otherwise.32

[page 236] 5.13 On the question whether a transsexual who had undergone reassignment surgery would be considered of the opposite sex post-operatively for the purpose of marriage, the Department

expressed the view, somewhat tentatively, that they would probably not be so considered. The Department went on to say, however, that in light of such decisions as that of the Full Federal Court in Secretary DSS v SRA,33 and decisions in the states and territories allowing for alteration in birth certificates: If this trend continues, it is possible that some time in the future the High Court might find that the marriage power extends to the unions of post-operative transsexuals with persons of the sex opposite to that of reassignment.34

This issue was subsequently tested in the Family Court in Re Kevin: Validity of Marriage of Transsexual35 in 2001. In this case the applicant, ‘Kevin’, was a post-operative transsexual who was registered as female at birth. At first instance, Chisholm J refused to follow the 1971 UK case of Corbett v Corbett36 and held that the sexual human identity of a party should be determined at the time of the marriage in question, rather than at the time of birth. His Honour held that in the circumstances of the case (including the fact of sexual reassignment surgery), Kevin should be regarded as male at the time of the ceremony. As a result, his marriage to a woman (‘Jennifer’) was held to be valid. An appeal by the Commonwealth Attorney-General was dismissed.37 The Full Court held that Chisholm J was correct to rule that the words ‘man’ and ‘marriage’ were not technical terms and should be given their ordinary contemporary meanings for the purposes of the Marriage Act.38 Consequently, Chisholm J was correct in finding that Kevin was a man for the purposes of the Act.39 The Full Court also determined that the UK decision of Corbett (and the more recent House of Lords decision in Bellinger v Bellinger)40 did not represent the law of Australia.41 The amendment to the Marriage Act to include a definition of marriage (see 5.4) does not affect this decision, as no definitions of ‘man’ and ‘woman’ were added. The case of Re Kevin is discussed further at 6.43.

[page 237] Of importance to the issue of gender reassignment more generally is the decision of the High Court in AB v Western Australia.42 The question in this case concerned what a person needs to have done to show that they have undergone a ‘reassignment procedure’ in order to satisfy the legislative requirements for a certificate of gender reassignment under the Gender Reassignment Act 2000 (WA). The High Court unanimously held that the proper construction of ‘reassignment procedure’ for the purposes of s 14(1) of the Western Australian legislation does not require a person to ‘undertake every surgical procedure to remove every vestige of the gender which the person denies, including all sexual organs’.43 AB v Western Australia did not require a decision about what constitutes gender reassignment for other purposes, including marriage. It remains to be seen whether after Re Kevin, any gender reassignment less than full surgical reassignment will be considered sufficient to satisfy s 5(1) of the Marriage Act in order for a transsexual person to enter into a valid marriage with a person of the ‘opposite’ sex.

A voluntary union 5.14 It is an essential requirement that the union of marriage be voluntary in nature. A marriage entered into, when the consent of either of the parties is not true consent, is void pursuant to s 23B of the Marriage Act. What constitutes true consent is considered in Chapter 6.

For life 5.15 Some difficulty is presented by the notion that marriage is entered into ‘for life’. Divorce is now freely available in Australia after separation for 12 months under s 48 of the FLA: see Chapter 6. Yet even in Lord Penzance’s time, the notion that marriage was

for life was not an accurate reflection of the law; judicial divorce was available under the Matrimonial Causes Act 1857 (UK), albeit on limited grounds. Of course, a more conservative rationalisation of the modern law is still available in the reasoning proffered nearly 80 years ago in Nachimson v Nachimson,44 namely that at the point in time when the marriage is contracted, the parties’ intention is that it should be for life. However, nothing turns on this in law so it remains, in the end, as remarked by Watson J in Marriage of S,45 no more than a hoped-for state of affairs.

Engagements and breach of promise 5.16 At common law, marriage was preceded by an engagement. An engagement or agreement to marry constituted an enforceable contract, breach of which, [page 238] as with any commercial contract, was subject to legal sanctions. The loss of an anticipated marriage constituted, in very many cases, one or more economically quantifiable losses. One was the loss of the anticipated marriage relationship and the status of marriage itself. The other was the actual or anticipated wealth or monetary expectations of the other party. Somewhat less tangible, but scarcely less valuable, was having to forgo the loss of anticipated family and personal alliances in a world where advancement in life owed much to patronage and belonging to the right circles and families. The economic consequences of marriage were regulated in considerable detail. They were of great significance to members of the propertied classes. Prior to the Married Women’s Property Acts of 1870 and 1882 (UK), the economic position of a married

woman was one of almost complete dependence on her husband. On marriage, he acquired substantial rights over her property, such as the right to manage her freehold land. If she died before him and if there were issue (children of the marriage), he acquired a life estate (estate by the courtesy) in such lands. He was entitled to the income from her leasehold lands and they became his on her death. Her personal property became his absolutely. 5.17 The advantages conferred by marriage on a wife were more limited so far as material possessions were concerned, although socially and economically marriage was arguably the most important event in her life. On marriage, she first acquired the right to dower; this gave her a life interest, on her husband’s death, in one-third of his freehold lands of inheritance. There was also the right to maintenance which she lost only if she committed adultery or deserted him. In an age and society in which women were, economically speaking, the ‘weaker vessels’, the possibility of an independent existence for a woman was severely limited. From a practical point of view, a woman’s best opportunity of leading a comfortable life was to marry a well-to-do husband — to make a ‘good match’. Failing that, any husband was probably better than none. In nineteenth-century England, moreover, the opportunities of marriage for women were greatly restricted, as we are reminded by the Finer Report in 1974:46 Almost one third of women between the ages of 20 and 44 had to remain spinsters because differential mortality and large-scale emigration so depleted the reservoir of men that there were not enough to go round.47

The unmarried woman, unless she came from a wealthy family and was possessed of private means, was forced to earn her own living which was attended by severe inequalities of both opportunity and levels of remuneration. If almost any marriage conferred an economic as well as a social advantage on a woman, then even a binding contract to marry was a valuable commodity, and the loss of it

[page 239] a quantifiable and compensable economic detriment. If the would-be husband was also wealthy or well connected, the loss was so much the greater. The importance of the action for breach of promise is obvious. If, additionally, she had allowed herself to be seduced by him in reliance on his promise of marriage, her loss could be very severe indeed. A woman who had lost her virginity became ‘second-hand goods’, an ‘odd lot’ in the marriage market, and her chances of an advantageous subsequent marriage were greatly reduced. 5.18 A further element, or head of damage, that entered into the court’s calculations in assessing damages was the injury to the feelings of the rejected party. In later years, as the economic aspects of the action became less important to the point of vanishing, the courts tended to seize on this aspect as the last remaining rationale to justify an award. An example is Mills v Harris,48 where the economic and social consequences of the breach were wholly discounted, and an award was made on the basis of the defendant’s ‘rough and unmannerly way’ of breaking off the engagement. By contrast, and perhaps more illustrative of the attitude of 100 years earlier, in Berry v Da Costa49 the plaintiff was awarded £2500 for both loss of marriage and injury to her feelings. 5.19 The action for breach of promise, while it endured into an age in which it had ceased to have any social utility or other justification, did not survive the 1970s. In the UK, it was abolished by the Law Reform (Miscellaneous Provisions) Act 1970. It was abolished in South Australia by the Action for Breach of Promise (Abolition) Act 1971. At the Commonwealth level, it was finally abolished throughout Australia by the Marriage Amendment Act 1976, which inserted s 111A into the Marriage Act. Although the constitutional validity of s 111A has never been

challenged, the question has been asked whether it is properly characterised as a law with respect to marriage (under s 51(xxi) of the Constitution) and therefore a valid exercise of federal legislative power or a state matter as a provision of contract law.50 5.20 Gifts may have been given in anticipation of a marriage that never takes place. Section 111A(2) of the Marriage Act provides that: This section does not affect an action for the recovery of any gifts given in contemplation of marriage which could have been brought if this section had not been enacted.

Here the common law continues to operate.51 Gifts made by one party to the other may be found to have been made conditionally on the marriage taking place. If the [page 240] marriage does not take place because of repudiation without legal justification of one of the parties, the condition will be held to have failed. The party who repudiated the contract of engagement will then be made to return gifts received from the other party, and will be unable to insist on the return of gifts made to that other party. A favourite object of contention is the engagement ring,52 but the principle applies equally to other gifts of real or personal property (eg a block of land).53 In the UK, the law adopts a different policy. Section 3(2) of the Law Reform (Miscellaneous Provisions) Act 1970 (UK) creates the presumption, albeit rebuttable, that an engagement ring is an absolute gift. As Stephen Cretney has observed, this gives a jilted woman the right simply to throw away the ring!54

Codifying marriage

Introduction 5.21 The formation of marriage in Australia is now codified in the Marriage Act. Prior to the enactment of that statute, the law of marriage in Australia was regulated by the law of each state. Once the Commonwealth used its constitutional power to legislate on that topic in 1961, marriage law became uniform throughout Australia. Looking further back in history, the prerequisites and formalities of marriage were not as clearly specified as they are in the modern law. In the early Christian era, marriage was thought of as primarily a private matter. No religious or other ceremony was required — marriage was based on mutual consent and on the subsequent physical union of the parties. Marriage was constituted either by verba de praesenti, when the parties declared that they, there and then, took each other as husband and wife, or by verba de futuro, that they would do so. The latter became a binding relationship on consummation. Consummation of marriage is the first act of sexual intercourse between spouses after their marriage. In the Middle Ages, however, the church (the Roman Catholic Church) came to play an increasingly dominant role in the formation of marriage and the enforcement of its obligations. Questions of validity were matters for the ecclesiastical courts. It also became customary for marriages to be celebrated in facie ecclesiae: at the door of the church. This was mainly a matter of convenience, in that it introduced a measure of publicity, and made for certainty as to marital status and as to the legitimacy of children in an age that knew neither universal literacy, nor a centralised system of registration of marriages; and when society [page 241]

was mainly rural and parish-based, with the knowledge of legal transactions being transmitted largely by word of mouth. 5.22 The Roman Catholic Church introduced a further requirement at the Council of Trent in 1563, when it became necessary for an ordained priest and two witnesses to be present at a marriage ceremony. However, England had broken with Rome in 1534 and so English marriages remained unaffected by the Council of Trent. English law governing the formation of marriage was to remain in its pre-Tridentine state for another two centuries. Marriage in facie ecclesiae — which followed the publication of ‘banns’ or the obtaining of a licence — was not obligatory, though it was the only form that was attended by documentary certainty. However, either party to a marriage entered into by one of the other two methods mentioned above could obtain an order in the ecclesiastical court calling on the other party to have the marriage solemnised in facie ecclesiae.55 Nevertheless, there were many clandestine (secret) marriages and they were among the reasons for the existence of the old remedy of jactitation, which meant a court order was issued to a party to cease to ‘boast of’ being married to the person seeking the order.56 5.23 To put an end to these rather unsatisfactory conditions, Lord Hardwicke’s Act against clandestine marriages (also known as the Clandestine Marriages Act) was passed in 1753.57 From then on, the legal requirement for marriage was that it had to be celebrated in the presence of an episcopally ordained priest, in the parish church of one of the parties, according to the rites of the Church of England, in the presence of two witnesses, and either on the publication of banns or the obtaining of a licence. This requirement, which was similar to what had been introduced by the Roman Catholic Church after the Council of Trent (see 5.22), applied to members of all faiths except Jews and Quakers, who were expressly exempted from the provisions of the Act and whose marriages were governed by their own religious

usages.58 The purpose was to achieve certainty for, although marriage was indissoluble, in practice a marriage that was absolutely secret could, if the parties so chose, be disregarded. This would have tended to defeat the notion of indissolubility. 5.24 However, the Act, in turn, gave rise to other disadvantages. One was the stringency of the requirement of parental consent for under-age persons. This resulted in the well-known ‘Gretna Green’ marriages in Scotland, where the [page 242] same requirement was not present.59 In 1823, a new Marriage Act60 was therefore enacted in England which withdrew the consequences of invalidity previously attending the failure to comply strictly with the requirements regarding the choice of church, the publication of banns or the obtaining of a licence, or the solemnisation by a person not in Holy Orders, except in cases where the failure to comply was committed knowingly and wilfully by both parties. An excellent, concise account of the history of marriage and its necessary formalities is to be found in the Finer Report.61

Marriage Act 5.25 The Marriage Act provides a code governing marriages contracted in Australia. The Act also provides for certain ‘Australian’ marriages to be celebrated overseas by defence force chaplains.62 The Act formerly provided for certain ‘Australian’ marriages to be celebrated by consular representatives acting as marriage officers.63 This was removed by the Marriage Amendment Act 2002 (Cth), although the practice had ceased by 1993. A different issue, that of the general recognition by

Australian law of ‘non-Australian’ marriages celebrated overseas, is also governed by the Marriage Act.64 5.26 To contract a valid marriage, both parties must have capacity and must consent to the union, and the essential formalities must be complied with. These three elements are codified in the Marriage Act as the statutory grounds of nullity. Failure to satisfy any of them will result in a marriage being void.65 Capacity to marry and the essential formalities of marriage are considered below. The grounds of nullity, including the absence of real consent, are considered in Chapter 6. It is important to determine when a particular union is a ‘void marriage’ because the effect of s 71 of the FLA is to extend the availability of financial proceedings under Pt VIII of the Act to ‘void’ marriages. As the law currently stands (see 5.10), a same-sex union (even if a marriage ceremony has been performed) is not a valid marriage, even though it is not stipulated to be a void marriage by s 23 or s 23B of the Marriage Act, wherever that ‘marriage’ ceremony is performed. The interesting question arises: could a same-sex marriage purportedly entered into in Australia or a marriage in contravention of s 113 of the Marriage Act be regarded as a ‘void’ marriage for the purposes of s 71 FLA? [page 243] Recently, in Zau v Huang,66 Berman J concluded that a marriage entered into in contravention of s 113 of the Marriage Act is a nullity: see 6.108. In this case a couple who were validly married to each other in China subsequently went through a second marriage ceremony in Australia. Berman J concluded that the second marriage must be void, notwithstanding that entering into a second marriage in contravention of s 113 of the Marriage Act it is not referred to in s 23B(1) as a ground of nullity and notwithstanding the apparently exclusive nature of the words ‘and

not otherwise’ at the conclusion of s 23B. Accordingly, Berman J declared the second marriage to be void and therefore a nullity. Applying the same reasoning, a same-sex union purportedly entered into in Australia would also be a nullity. If the question were to arise whether a marriage that is void other than on the grounds stipulated in s 23B is a ‘void’ marriages for the purpose of s 71, other considerations would apply, including the remedial legislative purpose of s 71 to provide access to the property and maintenance relief under the FLA to spouses of marriages that are void according to s 23B: see 6.105. It cannot be assumed that a court would construe ‘void marriage’ in s 71 to include a marriage that is a nullity because it contravenes s 113 of the Marriage Act or is a same-sex union.

Marriage Amendment Act 1985 (Cth) and the marriage of foreign nationals in Australia 5.27 Before the relevant provisions of the Marriage Amendment Act 1985 (Cth) came into operation on 7 April 1986, s 23 of the Marriage Act, which states the grounds on which a marriage contracted in Australia is void, was expressly made subject to the common law rules of private international laws.67 Consequently, the capacity of foreign domiciliaries to contract a marriage in Australia was, according to the dual domicile theory (subscribed to by the majority of text writers) governed by the laws of their respective domiciles at the time immediately prior to marriage. This was subject only to Australian requirements of minimum marriageable age, which were and are expressly stated to apply wherever the parties are domiciled.68 However, it may be questioned how many authorised celebrants actually inquired into foreign parties’ capacities under their own laws before celebrating marriages. This rule now applies only to marriages celebrated on or after 20 June 1977 and before 7 April 1986.69 The validity of marriages celebrated in Australia after the date of commencement of s 13 of

the Marriage Amendment Act (ie 7 April 1986) is now governed by ss 23A and 23B of the principal Act, and the effect of these provisions is that the matter is governed entirely by Australian domestic law (as the local law) and that foreign domiciliary laws are irrelevant. [page 244] The purpose of the 1985 legislation in Australia was to give effect to the Hague Convention on Celebration and Recognition of the Validity of Marriages 1978. Under the Convention, the law of the place where a marriage is celebrated assumes primary importance. It will be seen later that unlike the new rules governing validity of marriages within Australia, the new rules governing recognition of foreign marriages are retrospective in their operation: see 5.61.70 The rationale behind this distinction is not immediately apparent, but the distinction has important practical implications for the way in which cases must be argued.

Capacity to marry 5.28 The parties must have legal capacity to contract the marriage. The capacity to contract a marriage must exist in both parties in each of the following three respects: the parties must be free to marry, they must not stand within the prohibited degrees of relationship to one another and they must be of marriageable age.

Freedom to marry 5.29 A person is free to marry if he or she is not already married. If there has been a prior marriage, it must have been terminated by death or divorce. If the earlier ‘marriage’ was void, then of course it is not an obstacle to a subsequent marriage.

Strictly speaking, it does not require a court to say that a marriage is void, although it may be convenient to obtain a declaration of nullity under s 113 of the FLA, or a decree of nullity under s 51 of the FLA, particularly since a marriage celebrant must be satisfied that a person to be married is free to do so.71 It follows that a ceremony of marriage undergone by a person who is already married does not bring into being a valid marriage, and any such purported marriage will be void.72 (See the discussion of this ground of nullity at 6.15–6.20.) Moreover, a person going through such a ceremony may also be guilty of the crime of bigamy: see 5.81. However, the considerations applicable to bigamy are not necessarily the same as those governing the law as to the validity of a marriage. A belief that the previous spouse was dead at the time of the second marriage in question is a defence to a prosecution for bigamy,73 but it cannot alter the fact that at the time of the ceremony there was no capacity to contract the marriage.74 The important time to be considered is that of the purported marriage. If the real spouse subsequently dies, there will again be capacity to marry, but capacity only exists prospectively — the bigamous marriage cannot be validated retrospectively. [page 245]

Prohibited relationships 5.30 The parties must not be within the prohibited degrees of relationship to one another. If they are, the marriage is void.75 The prohibited degrees were greatly simplified under s 51 of the FLA. These provisions were subsequently transferred to the Marriage Act by s 12 of the Marriage Amendment Act 1976 (Cth). The prohibited degrees are now spelt out fully in ss 23(2) and 23B(2) of the Marriage Act and are as follows:

Marriages of parties within a prohibited relationship are marriages — (a) between a person and an ancestor or descendant of the person; or (b) between a brother and a sister (whether of the whole blood or the half-blood).

5.31 These prohibited relationships were formerly very extensive (see 1.9–1.10) and were originally based on the biblical, so-called ‘levitical degrees’. The list was still fairly extensive under the Matrimonial Causes Act 1959 (Cth).76 However, both modern views of eugenics and the fact that the place of the extended family has been taken by the nuclear family have removed any rationale behind these old prohibitions. The lines of authority or of affection between members of families are therefore not liable to be upset by conflicting loyalties established by marriages between persons more distantly related to one another. Neither is the general sense of morality in the community any longer affronted by the marriage of any but close relations. 5.32 The result is that even blood relations may marry one another, unless they are in a direct ascent–descent relationship (parent and child, grandparent and grandchild, etc.) or brother and sister. For this purpose, it is immaterial if the prohibited relationship was constituted by adoption or by birth. Relationships of affinity — that is, constituted only by marriage — are now completely free from any restriction.77 5.33 Current Australian law in relation to those who are permitted to marry each other is liberal in comparison with that of some other countries with similar legal systems. Consequently, in Australia, an uncle is permitted to marry his niece. This is not the case in many other countries. Since 7 April 1986, marriages contracted in Australia are governed entirely by Australian domestic law and unaffected by any incapacity existing under the law of the parties’ domiciles.78 Consequently, an uncle and niece both domiciled in a country where their marriage would be invalid, can now come to Australia and contract a marriage that is valid according to Australian law.

[page 246]

Marriageable age 5.34 Laws prohibiting marriage under a specified age were originally based on the age at which it was thought a child could consent, and so very young children could in theory marry.79 In more recent times, the restriction is more likely due to the assumption that unions between the young are unlikely to be stable. Historically, the law’s view on an acceptable minimum age has altered, the modern law being stricter. Both at canon and common law, 14 years was specified for boys and 12 years for girls, the notional age at which puberty was reached. Modern statutory law continued to specify different minimum ages for the two sexes. 5.35 The differentiation between the sexes was difficult to justify in modern conditions. The present form of the applicable section — s 11 of the Marriage Act — dates back to 1991, when it was amended80 to make it conform with the Sex Discrimination Act 1984 (Cth). Before then, marriageable age was 18 years for males and 16 years for females. Section 11 now says: Subject to section 12, a person is of marriageable age if the person has attained the age of 18 years.

5.36 Under s 12, the marriageable age can be lowered to 16 years for one of the parties upon application to a judge or magistrate. Section 12(1) provides: A person who has attained the age of 16 years but has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorising him or her to marry a particular person of marriageable age despite the fact that the applicant has not attained the age of 18 years.

In exercising the function under this section, the judge or magistrate does not act in a judicial capacity, but as a persona designata (nominated for the purpose):81

The power to make an order lowering marriageable age is discretionary and, although the exercise here is strictly not a judicial act, it is suggested that it would be exercised on similar lines when, as here, it is entrusted to a judicial officer.82

5.37 The discretion can only operate where s 12(2) of the Act applies: The Judge or magistrate shall, subject to sub-section (4), hold an inquiry into the relevant facts and circumstances and, if satisfied that —

[page 247] (a) the applicant has attained the age of 16 years; and (b) the circumstances of the case are so exceptional and unusual as to justify the making of the order; the Judge or magistrate may, in his or her discretion, make the order sought, but otherwise the Judge or magistrate shall refuse the application.

No other guidelines for the exercise of the discretion are provided in the Act. Since the majority of applications under s 12 have been made to magistrates, whose decisions are not reported, the only guidance available as to judicial attitudes in this area is in reported decisions of the small number of applications that have been made to judges. No clear policy emerges from them, except perhaps the predictable one that an application is more likely to be granted if the magistrate considers the parties concerned are likely to make a successful marriage. Section 12(2)(b) requires the judge or magistrate to be satisfied that the circumstances of the case are ‘so exceptional and unusual’ as to justify making the order. The meaning to be attributed to the word ‘so’ has been the subject of varying judicial opinion over the years. In Re Z,83 Joske J held: It is to my mind clear that the judge must satisfy himself that the circumstances are exceptional and unusual so as to justify the making of the order. (emphasis added)84

In Re an Application by P & P,85 Crockett J rejected Joske J’s

interpretation as based on what Crockett J regarded as an unwarranted change to the clear wording of the provision. Crockett J concluded that by placing the word ‘so’ before the words ‘exceptional and unusual’, the circumstances must be other than commonplace — that is, out of the ordinary — as held in previous cases,86 and in addition: … the circumstances must be ‘very’ exceptional or ‘extremely’ exceptional.87

In the 1997 Western Australian case of Ex parte Amie Dorothy Willis,88 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’,89 stating: The difficulty, as I see it, with great respect, in treating the word ‘so’ as meaning ‘very or extremely’ is that, grammatically, one cannot substitute either of the latter words in place of ‘so’ in the context in which it appears. It would be ungrammatical, in my respectful opinion, to read the subsection as providing: ‘the circumstances of the case are very (or extremely) exceptional and unusual

[page 248] as to justify the making of the order.’ The word ‘as’ where it appears renders the former construction impossible. One could, however, substitute the word ‘sufficiently’ for the word ‘so’ without doing any injury to the sense or the grammar of the passage in question.90

Consequently, the threshold test (until a higher court rules otherwise) arguably is that the judge or magistrate must be satisfied that sufficiently exceptional or unusual circumstances exist to make an order authorising the under-age person to marry. 5.38 What circumstances then have been held to be ‘so exceptional and unusual’ to satisfy the provision? To say that this will depend on the circumstances of each case is certainly in line with authority, but is not of much assistance with the question whether in any given case an application is likely to succeed. One obvious circumstance is the pregnancy of the female party

to a proposed marriage. The orthodox view of the law has usually been that pregnancy of itself is not a sufficiently exceptional and unusual circumstance. As Selby J said in 1964, it was an ‘unfortunate fact that it cannot be regarded as exceptional, or unusual, to find that a 15 year old girl has become pregnant’.91 In 1970 in Re Z,92 Joske J added, however, that: … if a judge is able to conclude on the evidence before him that it indicates that the marriage is likely to be a successful, happy marriage, in my opinion, he is able to say that this is ‘out of the ordinary’, and that it is ‘exceptional and unusual’, since so many marriages of people of the young age referred to in s 12 have been absolute failures and doomed to failure from the start.93

While such a view may be arguable, it is submitted that it is much too widely stated. The fact that a young couple, at the time of the application under s 12, are evidently in love and happy about their proposed marriage, does not, of itself, bring the case within the ‘so exceptional and unusual’ category. The great majority of young couples are probably similarly in love, even if statistically a large percentage of them will subsequently lose interest in the marriage and separate. It is illogical, therefore, to argue from that fact alone that the marriage is likely to be successful in the future. 5.39 Nonetheless, there are some older cases where pregnancy has been taken to constitute sufficiently exceptional and unusual circumstances to permit an order being made.94 The circumstance that the child would be born out of wedlock and the stigma attached to the child’s parents has been termed the ‘turning point’ of [page 249] the case. Even the fact that the subsequent marriage of the child’s parents would legitimate the child (by virtue of s 89 of the

Marriage Act) does not seem to have been considered a sufficiently strong argument to the contrary. Whether these arguments would be accepted now is open to considerable doubt. Nevertheless, in the relatively recent case of Ex parte Amie Dorothy Willis95 (see 5.37), the court commented that while pregnancy of a female not of marriageable age may not in itself be exceptional and unusual, it may be taken into consideration together with other factors. In addition to the applicant’s pregnancy in this case, the court noted factors such as parental support, well-advanced wedding plans, and the fact that both parties were in paid employment and saving for a deposit for a house.96 Again, this appears to reflect an intention to permit marriages where stability seems likely, in spite of the difficulties inherent in such predictions. Of more concern, one wonders how young adults with less in the way of resources and parental support might fare. 5.40 Another conflict may arise where an applicant is a member of a foreign ethnic community whose customs and practices differ from those common in the Australian community. In one such case, Re SG,97 Blackburn J refused an application on the basis that the ‘so exceptional and unusual’ circumstances must relate to the particular person of the applicant and not to the class of persons of whom he or she is a member. Yet in a very similar case, Re D, an unreported decision of Bridge J in the Supreme Court of the Northern Territory,98 these kinds of circumstances had persuaded the court that it was justified in making an order lowering the age of the applicant. 5.41 Another case in which s 12 is discussed is K v Cullen.99 This was an appeal against the decision of a magistrate refusing to make an order under s 12(2). It was brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to a single judge of the Federal Court and was heard by Moore J. The judgment discussed the structure of the section and characterised

the magistrate’s decision as an administrative act. Moore J then examined the magistrate’s reasoning. The applicant was a 16-yearold girl who was living in a steady relationship with her fiancé. The couple had had a child and wished to marry. The magistrate had held that in his view, there were no exceptional and unusual circumstances in the case, without particularising any of the circumstances. On this point, Moore J quoted [page 250] Joske J’s decision in Re Z100 (see 5.38) and adopted Joske J’s analysis of the meaning of ‘so exceptional and unusual’. She also said, specifically, that the fact that the couple were living together, had a child and were rearing him ‘must stand them apart from the usual circumstances contemplated by s 12(2)(b)’.101 In the result, her Honour held that the magistrate’s decision disclosed an error of law and that must be set aside. 5.42 Having regard to these variations and discrepancies, it seems that it would be desirable to bring the criteria in s 12 into line with what may be regarded as the object of the Act, namely to ensure as far as possible that marriages be entered into only by those parties who are emotionally and, in other respects, of sufficient maturity to undertake the responsibilities of marriage. Since the introduction by the Family Law Reform Act 1995 (Cth) of the court counselling service, judges have had an opportunity to consult appropriate, qualified professionals (now called family consultants) attached to the court in order to gain some appreciation of these factors in relation to the parties before the court. In fact, the ability to consult with a family consultant has been specifically added to the Marriage Act by the Marriage Amendment Act 1976 (Cth) in relation to cases where a judge is asked to permit a minor to marry without parental consent, which would otherwise be required.102

5.43 Returning to the case of K v Cullen, after Moore J had shown her agreement with Joske J and set aside the magistrate’s decision of refusal to make the order sought, where did that leave the applicant and her fiancé? The answer, unfortunately, must be ‘precisely nowhere’. Moore J held that she had no power to make a decision in place of the magistrate. The decision of the magistrate was final — in a limited sense. The Act does not provide a right of appeal against a magistrate’s order under s 12 and, consequently, there is no judge with the power to substitute his or her opinion for that of the court below. The appeal had been brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeking to have reviewed a decision of a magistrate made under s 12 of the Marriage Act. However, that decision having been set aside, there appears to be no provision for another decision being substituted for it. Neither is there a power in the Marriage Act to remit the matter to the magistrate. Under s 19(1), a further application under s 12 may be made after a period of six months has elapsed since the previous decision. However, this also requires an applicant to satisfy the magistrate or judge hearing the fresh application that ‘there has been a substantial change in the relevant facts or circumstances since the refusal of the former application’.103 It would seem barely arguable in the [page 251] present case, on a fresh application, to say that Moore J’s reasoning constituted such a substantial change. In the result, the applicant’s victory was a pyrrhic one. Perhaps this unsatisfactory ending influenced Moore J too, who said that the ‘relief … given in this matter should not be taken as an indication that relief will issue in any similar application if reviewable error is established’.104

This jurisdictional difficulty also surfaced in Ex parte Amie Dorothy Willis105 (see 5.37), as evidenced by an application by counsel at the start of the trial to amend the basis of the application to seek an order to quash the original decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As we have seen, White J granted the order in this case and ended the reasons by noting the matter was to be remitted for rehearing by the Court of Petty Sessions. There was no discussion of K v Cullen on this point, and s 12 has not been amended to overcome the problem. Thus, it is not clear if White J disagreed with Moore J or the matter was overlooked. However, even if the Court of Petty Sessions reheard the matter in breach of s 19(1) (in other words, no new circumstances), the validity of any consent given in those proceedings would be preserved under s 19(2). The matter could be remedied by providing for an appeal against a decision given under s 12 with an accompanying power to remit, or to substitute the reviewing judge’s opinion for that being reviewed. 5.44 Where an order authorising a person under marriageable age to marry is made, it has the effect of rendering the applicant ‘of marriageable age’, but only in relation to the particular marriage in respect of which the application was made.106 The order is valid for three months, and if the marriage authorised by it is not entered into within that time, it lapses.107 Where a person who is not of marriageable age, and in relation to whom no order has been made or is valid under s 12, goes through a form of marriage, that marriage would be void under ss 23(1)(e) and 23B(1)(e): see 6.52ff.108

Consent to the marriage of minors 5.45 In addition to judicial permission (see 5.36–5.44) a minor, as defined in s 5(1) of the Marriage Act — that is, a person under the age of 18 years — requires written consent in order to marry.

However, this consent is not required if the minor has previously been married.109 The person whose consent is required is specified in s 14 of the Act. This section must be read with the Schedule to the Act to determine whose consent is required. Unless a child has been adopted, Pt I of the Schedule nominates the [page 252] minor’s parents, except where they are not living together, or where they have both been deprived of the ‘custody’ of the minor. In cases where the parents are separated, or where one of them is dead, it will usually be the parent with whom the minor is living, or the surviving parent. In other cases, it may be the person or persons having ‘custody’ of the minor, or the guardian or guardians, or a prescribed authority. Part II of the Schedule has been deleted and Pt III deals with children who have been adopted. These provisions follow a similar pattern to that applying to children who have not been adopted, the adoptive parent/s taking the place, where appropriate, of the biological parent/s. The provisions of the Schedule should be looked at in detail in order to follow the effect of ss 14–21. 5.46 Failure to obtain the necessary consent does not render the marriage void.110 It is, however, an offence to marry a minor, punishable by a $500 fine or imprisonment for six months,111 unless the defendant reasonably believed that the minor was over the age of 18 years, or had previously been married, or that the required consent had been given or dispensed with under the Act.112 5.47 Consent may be dispensed with in certain circumstances by a prescribed authority on written application by a minor wishing

to marry.113 A prescribed authority is an authorised marriage celebrant or a justice of the peace who has been appointed by the Attorney-General as a prescribed authority.114 The power of a prescribed authority to dispense with consent is, however, limited to certain enumerated circumstances, namely where the required consent cannot readily be obtained and where the prescribed authority has no reason to believe that that consent would be refused if it could be obtained, and where the prescribed authority has no reason to believe that facts rendering such consent improper may exist.115 This provision cannot be used where consent has been refused.116 Where that is the case, the Act provides for an application to be made to a judge or magistrate under s 16(1). ‘Judge’ here, according to the definition in s 5, means a judge of the Family Court of Australia or of the Federal Circuit Court who has been appointed by the Attorney-General for the purpose of the section, or a judge of a state court in respect of whom an appropriate arrangement for this purpose has been made pursuant to s 9 of the Marriage Act, or a judge of the Supreme [page 253] Court of a territory, as provided by amendment to s 16(1) made by the Marriage Amendment Act 1976 (Cth). By s 9A(1) of the Marriage Act,117 provision is made for phasing out the exercise of powers or function under that Act by judges ‘otherwise than by a Judge who is a Judge of the Family Court of Australia or of the Family Court of a State or a Judge of the Federal Circuit Court of Australia’. 5.48 The scope of an application under s 16 of the Act is strictly circumscribed. The magistrate or judge has power to give consent in place of the person who refused consent to the marriage of the minor only if, after holding a full inquiry into the relevant

circumstances, he or she is satisfied that that refusal was unreasonable.118 If the application relates to a refusal by a prescribed authority to dispense with consent pursuant to s 15, the procedure is similar and the magistrate or judge may give consent on being satisfied that it would be unreasonable to refuse the consent. 5.49 Section 17 provides for a rehearing by a judge where an application has been refused or granted by a magistrate (but not by a judge), or against the granting of such an application. On such a rehearing, the judge proceeds similarly to the procedure laid down for an original hearing, as set out in s 16.119 No further appeal is available under the Act. 5.50 Applications under s 16 are naturally less common than they were before the age of majority was reduced to 18 years. The provision has been described as an uneasy attempt to uphold parental authority, while at the same time discouraging parental objections that are not well-founded. There are those who would advocate the removal of any requirement of parental consent for those of marriageable age (which a minor would be once court consent is obtained), which they may regard as a hangover of a stricter family regime in relation to young persons and their protection than is generally the case today. 5.51 Possibly the provisions are the best that could be devised at the time they were enacted. As in the case of s 12 of the Marriage Act, the proceedings are not legal proceedings in the strict sense of the words. A judge is chosen to exercise the power because judges by training and experience are qualified to inquire into facts and to apply criteria — such as those spelt out in s 16 — to those facts. The inquiry is held in private and the judge is not bound by the rules of evidence.120 In any [page 254]

event, with the lowering of the age of majority, these cases have diminished almost to vanishing point.121

Formalities 5.52 The formalities for the solemnisation of marriages in Australia are set out in Pt IV of the Marriage Act. In addition, Pt V provides for the solemnisation of ‘Australian’ marriages overseas by Defence Force chaplains. Some detailed amendments in relation to formalities were effected by the Marriage Amendment Act 1985 (Cth) and the Marriage Amendment Act 2002 (Cth). Failure to comply with certain formalities does not necessarily render a marriage invalid as it may be saved by s 48(2) or (3) of the Marriage Act (for discussion, see 5.82), or presumed to be valid at common law (see 5.75–5.78).

Marriages in Australia by authorised celebrants 5.53 A marriage in Australia must normally be solemnised by or in the presence of an authorised celebrant.122 The list of authorised celebrants is a long one. The law has come a long way since the stringencies of Lord Hardwicke’s original Act (see 5.23), and parties intending to marry now have a wide choice of who should perform the ceremony, and how and where. 5.54 Authorised celebrants are: first, ministers of religion registered under the Marriage Act; and second, persons authorised to solemnise marriages, either under the law of a state or territory, or by the Commonwealth Attorney-General by instrument in writing.123 The registration of ministers of religion is dealt with in Pt IV Div 1 Subdiv A (ss 25–38) of the Marriage Act. The registration of civil celebrants is dealt with in Pt IV Div 1 Subdiv C (ss 39A–39M). The Act provides for the appointment of registrars and deputy registrars of ministers of religion in each state and territory.124 It is

the duty of these registrars to register ministers of religion who are entitled to registration under the Act.125 The conditions governing eligibility for registration are laid down in s 29. Four conditions must be satisfied. The minister must be: (a) a minister of a denomination recognised by Proclamation of the GovernorGeneral under s 26 of the Act; (b) nominated for registration by that denomination; (c) ordinarily resident in Australia; and (d) at least 21 years of age.126 [page 255] However, this eligibility is not an absolute entitlement, for a registrar may refuse any registration if there are already enough ministers of the denomination in question registered in the locality, or if the applicant is not a fit and proper person, or is unlikely to devote a substantial amount of his or her time to the performance of the functions of a minister of religion.127 The Act also provides for the appointment of a Registrar of (civil) Marriage Celebrants.128 The registrar is required to maintain a register of marriage celebrants.129 Three conditions must be satisfied before an individual is entitled to registration as a marriage celebrant.130 The registrar must be satisfied that the person seeking registration: (a) is aged 18 years or over; (b) has all the qualifications and/or skills as required by reg 37G of the Marriage Regulations 1963 (Cth); and (c) is a ‘fit and proper person to be a marriage celebrant’.131 In determining the fitness of the applicant, the registrar may take into account anything he or she considers relevant, but is required to consider a number of factors including the applicant’s standing in the community, criminal history and whether the applicant may have an actual or potential conflict of interest arising from other business interests.132 The Act (s 39G) and Regulations (reg 37L) set out in some detail the obligations of civil

celebrants, including compliance with a Code of Practice introduced in 2003.133 5.55 The Act also recognises registrars of marriages appointed under state or territorial law as competent to solemnise marriages.134 Additionally, the Attorney-General may authorise other state or territorial officers or other suitable persons to solemnise marriages.135 Under the last-mentioned provisions, the Attorney-General has appointed ministers of religious denominations which are not recognised under the Act, as well as a number of civil marriage celebrants. 5.56 As previously mentioned (see 5.53), a marriage must be solemnised by or in the presence of an authorised celebrant.136 In the 1998 case of W v T,137 the Full Court held that, provided the authorised celebrant has consented to attend the ceremony for the purpose of ensuring its validity, the celebrant’s mere presence, rather than any active participation, is sufficient for the purpose of the Marriage Act.138 [page 256] The manner of solemnisation is laid down in ss 41–46 of the Act. The following seven requirements must be observed: 1.

2.

Written notice of the intended marriage must be given to the authorised celebrant who is to solemnise the marriage at least one month before the date of the marriage (and not earlier than 18 months before the date of the marriage).139 An official birth certificate or an official extract must be produced in respect of each party, or a statutory declaration giving the information, where it is impracticable to obtain such a certificate, or a foreign passport showing the date and place of birth of the party.140 Interestingly, an Australian

3.

4.

5.

6.

passport is not sufficient for this purpose. Each party must certify as to their conjugal status, and their belief that there is no legal impediment to the marriage.141 If a party is divorced or widowed, evidence of the divorce or of the death of the former spouse must also be supplied.142 A marriage may be solemnised on any day, at any time, in any place.143 Ceremonies in gardens and parks are now commonplace when conducted by civil celebrants. There must be at least two witnesses to the marriage, who must both be over the age of 18 years.144 Non-conformity with this requirement does not render the marriage invalid.145 A civil celebrant (but not a religious celebrant) is required by the Act to explain to the parties the legal nature of marriage, in words set out in s 46(1) or words to the same effect. The formula prescribed includes what is virtually a direct adaptation of Lord Penzance’s definition of marriage in Hyde v Hyde146 (see 5.4): ‘Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ This requirement, and any legislative prescription as to the form of the ceremony, does not apply to a minister of religion — presumably because the rites of that religion will make provision to the same effect.147 As to the form of a nonreligious ceremony, it is sufficient if each of the parties says to the other, in the presence of an authorised celebrant, the words ‘I call upon the persons here to witness that I, (husband or wife), take thee, (name of other party), to be my lawful wedded (wife or husband)’ or words to that effect.148 [page 257]

7.

After the ceremony, a marriage certificate must be prepared, and must be signed by the parties, the celebrant and the

witnesses. A copy is to be handed to one of the parties, and another copy forwarded to the registered authority in the state or territory concerned. Another copy is kept by the celebrant, to be subsequently stored with the parish or other records normally kept by the denomination in question.149 The regulation also makes provision that if the authorised celebrant was a civil celebrant authorised under s 39(2) of the Act, they may destroy the certificate retained by them after the expiration of six years after the solemnisation of the marriage.150

Consular marriages in Australia 5.57 The Marriage Act permits marriages of foreign nationals within Australia by appropriate consular officials. The diplomatic or consular officers can only be from certain proclaimed overseas countries. The Governor-General may declare by proclamation that a country is a ‘proclaimed overseas country’ for this purpose.151 At least one of the parties must possess the nationality of the proclaimed overseas country.152 Neither of the parties to such a ceremony has to be an Australian citizen.153 Moreover, some of the rules of Australian domestic law are applied to foreign consular marriages within Australia: the parties must not be within the prohibited degrees as defined in the Marriage Act, neither must be married already, and Australian requirements of minimum marriageable age apply.154 There are certain machinery provisions for the registration of such consular marriages and the keeping of a register for that purpose155 by a Registrar of Foreign Marriages appointed under the Act.156

Australian marriages overseas 5.58

Part V of the Marriage Act was amended by the Marriage

Amendment Act 2002 (Cth) to remove the ability of certain Australian embassy and consular officials to marry Australian citizens overseas. This practice had, in any event, ceased by 1993. 5.59 Division 3 of Pt V, however, makes provision for marriages overseas to be performed by a chaplain in the Defence Force, if at least one of the parties to the [page 258] proposed marriage is a member of the Defence Force.157 Again, the procedure and formalities are similar to those in relation to marriages in Australia, except that a chaplain is given somewhat more latitude as to the form and ceremony to be observed, no doubt having regard to the more difficult conditions in which he or she may be operating, particularly in time of war.158 The recognition rules contained in Pt VA, which are discussed in the next section, do not apply to Defence Force marriages overseas.159

Recognition of foreign marriages Introduction 5.60 In what circumstances will a marriage160 celebrated in an overseas country be recognised as valid by Australian law? The law will not simply recognise any marriage celebrated anywhere but, as in the case of overseas divorces, the law has over the years formulated fairly complex rules for distinguishing those marriages that will be recognised from those that will not. Until 1986, the Australian recognition principles were found in the common law rules of private international law preserved by s 22 of the Marriage Act. The common law drew a distinction between formal validity of marriage and essential validity or

capacity. Formal validity (the ceremony) was governed by the law of the place where the marriage was celebrated: the lex loci celebrationis. According to orthodox doctrine, essential validity (the parties’ capacity) was governed by the laws of their antenuptial domiciles. Domicile is a relatively strong connecting factor in the law of personal status — to be domiciled in a particular country, a person has to have real links with it. 5.61 The Australian recognition rules were changed by the Marriage Amendment Act 1985 (Cth) which introduced a new Pt VA into the principal Act. These provisions, which commenced on 7 April 1986, are retrospective in their operation (in contrast to the new ss 23A and 23B, governing marriages celebrated in Australia after that date: see 5.27). Consequently, the new recognition rules contained in Pt VA apply to all foreign marriages, whenever contracted.161 5.62 The general effect of the amended rules is to give primary importance to the law of the place of celebration. The former distinction between formal and essential validity is no longer relevant. The law of the place where the marriage takes place — the lex loci celebrationis, which previously only governed the [page 259] ceremony — now governs all aspects of validity. This general principle is made subject to certain rules of Australian domestic law. 5.63 Part VA (ss 88A–88G) of the Marriage Act is based on the Hague Convention on Celebration and Recognition of the Validity of Marriage. concluded on 14 March 1978. In essence, the general principle underlying the Convention is that validly contracted marriages should be recognised in other jurisdictions, though the Convention provides for exceptions.162

5.64 Thus, the form of ceremony must comply with the requirements of the lex loci celebrationis. In the 1930 Privy Council case of Berthiaume v Dastous,163 a man and a woman, both domiciled in Quebec, Canada, sought to contract a marriage in France. In doing so, they failed to submit to the formal requirements of that country which involved producing a civil marriage certificate to the officiating priest — no valid marriage being possible without one. The parties had not done so, but had merely gone through a religious ceremony. Subsequent nullity proceedings were dismissed by the Canadian courts which held the marriage valid on the basis that under the law of the parties’ domicile — that is, Quebec — the marriage would have been valid. On appeal, the Privy Council held the marriage void. In the words of Lord Dunedin: If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding, if conducted in the place of the parties’ domicil, would be considered a good marriage.164

This decision has been consistently followed since then, even to the point of holding proxy marriages165 valid if they were valid by the lex loci, though under UK or Australian laws no provision for such marriages exists.166 The 1983 case of Re B167 involved a proxy marriage in Lebanon to which an Australian man was a party. In this case, it was held by Fogarty J that the marriage was valid as to form, but void because the female party was only 15 and s 11 of the Marriage Act applied.168 [page 260] 5.65 The courts have developed an exception to the general rule that formal compliance with the lex loci celebrationis is required.

The so-called ‘common law marriage’ doctrine was developed in the context of post-World War II conditions in Europe where — with the collapse of the civil administrations in Germany and Italy, and the presence of large numbers of Allied military forces and of civilian displaced persons from countries formerly occupied by the Axis powers — it was not always easy or indeed possible to comply with local marriage laws. The same doctrine was invoked in the context of disrupted conditions in South-East Asia in the second half of the twentieth century. The common law marriage doctrine operates to save a marriage that does not comply with the formalities required by the lex loci, but does comply with the formalities of English common law; that is, the law prior to Lord Hardwicke’s Clandestine Marriages Act 1753 (UK) (see 5.21ff). For the doctrine to operate, it seems that either compliance with the local forms must have been physically impossible, or one of the parties was a member of a belligerent occupying force in the country concerned. According to mainstream case law, it is not sufficient that the parties simply chose not to submit to local law. 5.66 An example of an Australian case in which the common law marriage doctrine was unsuccessfully argued is Marriage of X.169 The parties went through a ceremony of marriage in Ho Chi Minh City in August 1978. The law of Vietnam at the time required parties to attend a civil office to register the marriage; the parties in question failed to do this. They went through a traditional form of ceremony conducted by the husband’s mother. After being in a refugee camp, they eventually came to Australia. The Family Court (Watson J) held the marriage to be void. His Honour found on the facts that it had not been impossible to comply with local forms, and held that it was not sufficient for parties simply to choose not to submit to local law. His judgment evidences an intention not to extend the doctrine further in Australia: The necessary civil authority and facilities were operative. They were not displaced

by post-bellum chaos as in say Germany or Italy during 1946. The fact that the parties did not avail themselves of registration because of their actual or intended refugee status does not alter the fundamental necessities for validity. Deprivation of liberty or risk of punishment cannot of themselves alter basic principle. If Australia considers that migrants in the apparent state of terror these parties found themselves in should have their marriage recognised, some amendment of statute law is necessary. Such a vast step is not available by judicial interpretation.170

[page 261]

The ‘new’ statutory recognition rule: local law 5.67 Sections 88C(1) and 88D(1) of the Marriage Act (as amended in 1985) state the new choice of law rule: a foreign marriage that is recognised as valid by the law of the country in which it was celebrated, ‘the local law’, will be recognised as valid in Australia. This principle applies irrespective of whether that country is a party to the Hague Convention and, as already pointed out, irrespective of the date of the marriage: see 5.61. Moreover, if a marriage is invalid under local law at the time it is celebrated, but becomes valid under that law at any time subsequently (eg if local law changes), it is to be recognised as valid in Australia.171 This retrospective validation principle derives from Art 9 of the Hague Convention. 5.68 The provisions of Pt VA of the Marriage Act are, however, more complex than a simple reference to the local law alone. In accordance with Art 11 of the Hague Convention, s 88D(2) contains certain derogations from straightforward reference to the local law. The effect is to incorporate into the rules for recognition of foreign marriages certain provisions of Australian domestic law on capacity. First, a foreign marriage that is valid according to the local law of the overseas country will not be recognised if either party is validly married to another person at the time.172 Presumably, this would deny recognition under the Marriage Act to a foreign

polygamous marriage contracted in an overseas country, the law of which permits polygamy. However, a party to such a marriage could apply under s 6 of the FLA for principal or ancillary relief from the Family Court of Australia (eg for divorce, nullity, maintenance, parenting orders or property division). The operation of s 6 (see 5.7 and 5.8) is preserved by s 88E(4) of the Marriage Act. The policy of s 88D(2)(a) is questionable. Why should Australian law not recognise a polygamous marriage contracted by two foreigners in their home country which permits polygamy? What is the interest of Australian law in the matter? Conceivably, however, such a marriage might be recognised as valid under s 88E, which is discussed at 5.71–5.72. 5.69 Further, s 88D(2)(b) requires both parties to a foreign marriage to be of marriageable age according to Australian law173 where one of the parties to the marriage is an Australian domiciliary. The policy of this is not novel; s 10(2)(b) of the Marriage Act has for some time applied Australian rules on marriageable age to the marriage of a person domiciled in Australia, wherever the marriage takes place. That provision was applied in the 1983 case of Re B174 to hold void a marriage by proxy in Lebanon between a 15-year-old girl and an Australian man of marriageable age. Comparable provisions of UK legislation had been given similar [page 262] effect in the earlier case of Pugh v Pugh.175 However, the principle is carried a step further by s 88D(3), which absolutely prohibits the recognition of foreign marriage between parties domiciled outside Australia while either party is under 16 years of age. Nevertheless, it is possible that such a marriage would be recognised as valid under s 88E.

5.70 Finally, s 88D(2)(c) and (d) prevents the recognition of an overseas marriage where the parties are within the prohibited degrees according to Australian law and where there was no real consent as conceived by Australian law. These provisions are likely to cause little trouble. We have already noted that Australian provisions on prohibited degrees are generous:176 see 5.33. Other provisions of s 88D deal with voidable marriages and with the issue of second or subsequent marriages contracted when an unrecognised first marriage was still in existence.177

Recognition at common law 5.71 Section 88E of the Marriage Act as amended in 1985 preserves the operation of the common law rules of private international law, if those rules would recognise a foreign marriage that would not be recognised under the provisions of ss 88C and 88D. This alternative is in accordance with Art 13 of the Hague Convention and the general principle favor matrimonii (that marriages genuinely entered into should be upheld). Of course, Art 13 is not mandatory and current Australian law would no doubt have been far simpler if the 1985 legislation had simply abolished the common law recognition rules and made the new statutory rules contained in ss 88C and 88D conclusive of the validity question. Instead, the same approach was adopted as that favoured in relation to the recognition of foreign divorces,178 namely that of preserving the old judge-made law alongside the new statutory recognition rules, with the aim of recognising the validity of the greatest number of marriages. Unfortunately, again, as is the case with overseas divorces, it is not easy to reconcile the statutory grounds of recognition with the common law rules. The interpretation of the new provisions of the Marriage Act poses some not inconsiderable problems.179 5.72

The basic principle of s 88E is that a marriage will be

recognised as valid in Australia if it would be recognised as valid according to common law rules, though [page 263] not by the new rules provided in ss 88C and 88D. What, then, are the common law recognition rules? At common law, a foreign marriage will be recognised as valid if, first, the formalities satisfy the requirements of the law of the place of celebration and, second, the parties have capacity under the laws of their ante-nuptial domiciles, as noted at 5.68–5.70.

No recognition of ‘foreign’ same-sex marriages 5.73 The emergence overseas of legal same-sex marriage has raised the spectre that the Australian Government might be forced to recognise such marriages as valid in Australia.180 In 2004, implacably opposed to such an outcome, the government of the day ensured that would not happen by inserting s 88EA in the Marriage Act,181 which stipulates that a same-sex union solemnised in a foreign country ‘must not be recognised as a marriage in Australia’: see the discussion at 1.60–1.63 and 5.10. Moreover, s 88B(4) was also added182 to ‘avoid doubt’ that in relation to Pt VA (dealing with recognition of foreign marriages), ‘marriage has the meaning given by subs 5(1)’ (ie ‘marriage means a union between a man and a woman …’). Thus, not even s 88E can make a same-sex marriage, validly performed overseas, valid in Australia. It will be interesting to see if s 88E survives any future challenges (eg an argument based on discrimination against the rights of gays and lesbians to ‘marry’ a person of the same sex, as has occurred in some overseas countries, such as Canada, South Africa and the UK) or whether a future parliament will remove this provision. Nygh argued that, at least at the moment, the Hague

Convention does not require recognition of such marriages, as the Convention applies to marriage ‘in its broadest international sense’ and that does not yet include same-sex marriage. However, he posited that this may change in the future183 and then the question would arise as to whether s 88EA would be consistent with Australia’s obligations under the Convention. There is growing political pressure on the Federal Government to allow for samesex marriage in Australia on grounds other than constitutional invalidity. Advocates for marriage equality point to the growing recognition of same-sex marriage in overseas countries for support for change to the law in Australia. They also point to two developments in Australia that facilitate foreign same-sex marriage by couples [page 264] living in Australia.184 First, the Australian Department of Foreign Affairs and Trade will issue certificates of non-impediment to marriage to Australian couples wishing to marry overseas.185 Second, while a same-sex marriage entered into overseas is not recognised in Australia, since 27 June 2014 it is possible for a same-sex couple to marry in UK consulates in Australia if at least one member of the couple holds UK citizenship.186 The first marriage in a UK consulate took place on 27 June 2014.187

Presumed validity of marriage 5.74 There can be difficulties ascertaining whether a person has the capacity to enter into marriage where that person appears to have entered into two marriages, but has not divorced the first spouse. Where it is clear that there are two properly contracted marriages, and no intervening or valid divorce, the second marriage will be void. There have been instances, however, where there was no conclusive proof of one of the marriages in question.

Nevertheless, one does not always need conclusive proof of a marriage for a court to find a marriage exists, due to the operation of two common law presumptions. The first presumption is that a man and a woman who have cohabited as husband and wife for a long time, acquiring the reputation and holding themselves out as married, even without any affirmative evidence of their being married, are validly married. This presumption can be overcome only by strong and weighty evidence to the contrary.188 The second presumption deals with cases in which there is evidence that the parties went through a ceremony of marriage. Such a ceremony is presumed to have resulted in a valid marriage unless, again, there is decisive evidence to the contrary. [page 265] 5.75 The presumptions were of particular value in former times when there was no, or not very effective, registration of marriages. Literacy and communications were also less well-developed than they are today. Proof in these circumstances was often difficult to obtain and the presumptions served to provide some degree of certainty in a sensible and pragmatic fashion. Today, the need for such an imprecise method of proving a valid marriage is greatly diminished, but the presumptions may still be invoked, particularly in the case of people who were purportedly married overseas and where there are no available records relating to their alleged marriage.189 5.76 Dixon J stated the second presumption in Axon v Axon190 as follows: Upon proof that a marriage ceremony had been duly performed between herself [the appellant] and the respondent, a presumption arose in favour of the validity of the marriage. It is said that the presumption is confined to the regularity and efficacy of the ceremony as a lawful mode of marriage. This, in my opinion, is not correct. The presumption in favour of the validity of a marriage duly celebrated

casts upon those who deny it the burden of producing reasonable evidence of the fact which renders the marriage void, whether that fact is an impediment consisting in a prior marriage or a prohibited degree of relationship, or the failure to fulfil some condition indispensable to the efficacy of the ceremony.191

The conclusion in such a case comes down to balancing the probabilities. The strength of this presumption (and the problems that shortcomings of evidence may present) was seen in Kirby & Watson.192 A marriage had been entered into in 1962, of which there were two children. According to the husband, the wife had left him and the children in 1967 and he had never heard from her again. Neither the police nor a private enquiry agent had been able to trace her. In May 1976 the husband had married again, describing his status as that of a bachelor. The wife to this second marriage subsequently sought a decree of nullity on the ground of the husband’s prior marriage. There was no evidence before the court that the husband had obtained a divorce from his first wife or that the marriage had come to an end by the death of the first wife. Watson J made an exhaustive review of the cases, including those on one of the old grounds for nullity: presumption of death. He discussed the role of presumptions as to the continuity of human life and of the validity of marriage and said: ‘Once [page 266] there is a challenge to the validity the court, being put on notice, should apply ordinary rules of common sense to the inferences to be drawn from what facts are known.’193 In the circumstances of this case, on the meagre evidence available, Watson J found himself unable to presume the first wife dead. He accordingly felt compelled to declare the first marriage valid and the second ‘marriage’ void. Another example is seen in Kousal & Tack,194 where the husband

was unable to rebut the presumption of marriage raised by an extended period of cohabitation with the wife in circumstances where they had both held themselves out as married. In this case, there was some evidence as to a marriage ceremony between the parties in 1949 in Czechoslovakia, though it appeared that the husband’s prior marriage to a woman in 1942 was not dissolved until 1952. As the proceedings in this case actually related to property and maintenance, in order to garner jurisdiction the wife merely needed to show there had been a marriage or a void marriage. The Full Court found that the trial judge had not erred in holding the husband had not, on the evidence provided, displaced the presumption of a valid marriage to the second wife. 5.77 A more recent case in which the common law presumption of validity of marriage applied is Oltman v Harper (No 2).195 In this case, Young J concluded that the husband and wife, both born in Somalia and later becoming Australian citizens, had participated in a marriage ceremony in Australia officiated by Sheikh M. The nature of the ceremony was disputed and a number of formalities were not complied with, but the court held that s 48(3) applied and therefore the marriage was not invalid. There was evidence that the couple had lived together as husband and wife in the belief that they were married, had four children together and were regarded in their community to be a married couple. The court concluded that the husband had failed to rebut the common law presumption that the couple were married and granted a declaration of validity. Arguably, in this case both presumptions referred to in 5.74 applied, namely the presumption arising from a ceremony of marriage and the presumption that arises through cohabitation.

Second marriage ceremonies 5.78 Section 113 of the Marriage Act makes it generally unlawful for a person who is already lawfully married to go through a

further form of marriage with their own spouse,196 and a celebrant purporting to solemnise such a marriage commits an offence.197 There are, however, two sets of circumstances prescribed by s 113 in which it is possible to do so. The first of these permits a person who is [page 267] married to go through a religious ceremony of marriage with their own spouse,198 where the parties had a civil ceremony and subsequently wished to conform with the religious practices of a given denomination. There may also be cases where the parties belong to different denominations and want to have two ceremonies so as to comply with the practices of each of those denominations, or they may simply wish to renew their marriage vows. In such cases, the provisions regarding the legal formalities as to notice and the issue of certificates do not apply199 and it will not be necessary for the celebrant officiating at such a ceremony to be an authorised celebrant within the meaning of the Act.200 5.79 The other exception occurs where a doubt exists as to the legal efficacy of the form of ceremony of marriage by which the parties had been married; for example, where that event took place outside Australia or where, for any reason, there is a doubt whether the marriage would be recognised by, or could be proved in, an Australian court.201 In such an event, it is permissible for the parties to go through a form of marriage, provided they: first, furnish a statutory declaration concerning the earlier solemnisation of their marriage, and second, obtain a certificate by a barrister or solicitor to the effect that there is, in his or her opinion, a doubt concerning the first ‘marriage’, so as to bring their case within the section.202 Any document issued to the parties in consequence of such a ceremony must describe them as

being already legally married to each other at the time of the ceremony.203 5.80 The effect of s 113 of the Marriage Act is to render a second marriage void.204 An example of the operation of the section is provided by Marriage of Kapadia.205 The parties were lawfully married in Fiji in December 1985. They went through a second marriage ceremony in Australia in December 1987. The husband sought an order for dissolution of marriage in March 1991. An Australian judicial registrar dissolved the first marriage, but made no order in respect of the second marriage. The husband applied for a declaration as to the validity of the Australian marriage. Kay J declared that the Australian marriage was not valid. His Honour refused to grant the decree of dissolution206 of the Australian marriage, holding that: It is clear from the provisions of s 113 of the Marriage Act 1961 that in Australia a marriage conducted between two persons already married to each other is not a lawful marriage.207

[page 268] There being no grounds available under s 23B of the Marriage Act, Kay J concluded that it was not open to the court to pronounce a degree of nullity pursuant to s 51 of the FLA and made a declaration of invalidity. More recently, in Zau v Huang,208 a case where parties who were lawfully married in China went through a second marriage ceremony in Australia, Berman J declared the second marriage to be void and therefore a nullity. His Honour’s approach in Zau is consistent with the inescapable conclusion that a marriage that is not lawfully entered into pursuant to the Marriage Act is void. (On declarations of validity, see 6.107–6.108.)

Consequences of non-compliance with the

Marriage Act 5.81 The grounds for a void marriage set out in the Marriage Act are discussed in Chapter 6. For present purposes, it should be noted that contravention or non-observance of only some of the provisions discussed above will result in the nullity of a purported marriage. These go to the prohibited relationships (ss 23(2) and 23B(2)) and to capacity, both as regards marriageable age (ss 23(1) (e) and 23B(1) (e)) and to the single status of persons about to marry: ss 23(1)(a) and 23B(1)(a). In either of these latter cases, contravention of the provisions of the Act will also constitute an offence, carrying a penalty of five years’ imprisonment: s 94(1) and (4) (bigamy); and s 95(1) (marrying a person below marriageable age). An offence is also committed by going through a form of marriage with a person below marriageable age without the requisite consent, unless that person has been previously married. This offence carries a penalty of $500 or six months’ imprisonment.209 Failure to obtain parental consent to the marriage of a minor does not invalidate the marriage;210 neither does the failure to observe most of the formal requirements prescribed in s 42 of the Marriage Act in the case of a domestic marriage.211 5.82 One important provision is directed to the validity of marriages solemnised by persons who are not authorised celebrants. While such an act of solemnisation constitutes an offence on the part of such unauthorised person212 as well as on the part of a party knowing that the celebrant is not so authorised,213 the resulting marriage is explicitly saved from invalidity if, at the time of its solemnisation, either of the two parties believed the celebrant to have lawful authority to do [page 269]

so, and provided that the form of the ceremony that took place sufficiently established the intention of both parties to become lawfully wedded spouses by that ceremony.214 This is a similar case of ‘good faith’ to the case of legitimation conferred on the child of a ‘putative’ marriage; that is, of a void marriage where at least one of the parties to the marriage believed it to be valid.215 5.83 A number of other offences are established under the Marriage Act: Pt VII ss 94–106. Further offences, of a procedural or relatively minor nature, are constituted under the Marriage Regulations 1963 (Cth). When the Family Court considers that a criminal offence may have been committed, the court will refer the papers relating to a matter to the relevant Commonwealth authority for investigation. In Ngo v Ngo,216 for example, Cronin J referred evidence to the Commonwealth Attorney-General for an investigation into the conduct of a marriage celebrant who officiated at a marriage ceremony that the court held to be void in the absence of real consent.217

Legitimation 5.84 There is no common law doctrine by which a later marriage legitimates an otherwise illegitimate child. If a child was born out of ‘lawful wedlock’, the child remained ‘illegitimate’ even if the parents subsequently married each other. The common law rule stood in contrast to that applying in civil law countries. The Roman law doctrine of legitimation per subsequens matrimonium was received into canon law and thereafter into civil law systems. UK law was not changed until the Legitimacy Act 1926 (UK). This was followed in Australia by state legislation and subsequently by s 89(1) of the Marriage Act: A child (whether born before or after the commencement of this Act) whose parents were not married to each other at the time of his or her birth but have subsequently married each other (whether before or after the commencement of this Act) is, by virtue of the marriage, for all purposes the legitimate child of his or

her parents as from his or her birth or the commencement of this Act, whichever was the later.

5.85 The constitutional validity of s 89 and of other provisions of the Marriage Act in their original form was upheld by the High Court as an exercise of the power granted by s 51(xxi) of the Commonwealth Constitution in Attorney-General (Vic) v Commonwealth (the Marriage Act case):218 see the discussion at 4.12ff. [page 270]

De facto relationships Introduction 5.86 The regulation of relationships outside marriage raises controversial policy issues in contemporary society. In particular, it invites a conflict between the interests of legal paternalism and those of individual autonomy. Contemporary society in Australia has grown increasingly diverse — culturally, racially and ethnically. It can be argued that recognition of diversity requires the law to recognise a variety of different family forms, leaving the individual (who is accorded a high degree of autonomy by contemporary mores) to choose between them. However, the freedom of couples to choose their preferred type of domestic relationship may itself be seen as inhibited by legal regulation, particularly if that regulation imposes on less formal relationships the consequences that attach to marriage.219 5.87 Yet law — and family law in particular — is designed to play a protective role in preventing or reducing exploitation in relationships; it enshrines values that society accords to the disparate roles assumed by partners within a relationship. The

argument is sometimes made that to grant increased legal recognition to relationships outside marriage undermines the value of marriage itself.220 The law cannot, however, simply abrogate its responsibility to those outside the bounds of formal marriage. The legal regulation of relationships outside marriage raises issues of equality and non-discrimination founded not only on marital status, but also on sexuality.221 Over 20 years ago, the Australian Law Reform Commission analysed the concept of ‘equality’ and rejected formal equality (ie neutral/identical treatment between genders and sexualities) in favour of a ‘difference’ approach, arguing that equal treatment does not necessarily mean identical treatment.222 In all other areas of federal law however, following recommendations of the Australian Human Rights and Equal Opportunity Commission,223 legislation providing [page 271] formal equality for same-sex couples has been introduced in areas of law including tax, social security, health, aged care and employment224 and superannuation.225 In contrast, and notwithstanding these reforms, formal equality is not reflected in marriage law in Australia: see 5.2. 5.88 Of particular significance to family law has been the question of the extent to which the property rights of unmarried couples should be equated with those who are married. This question raises some dilemmas. On the one hand, the interests of individual autonomy would seem to require that parties be free in a pluralist society to choose between categories of relationships with substantive differences as legal institutions. On the other hand, it can be argued that the law of property adjustment serves exactly the same function on the breakdown of a de facto relationship as it does upon marriage breakdown, and so the

substance of the two laws should be the same. According to Chisholm, Jessep and O’Ryan writing extra-curially: In substance the law’s purpose is to make a property adjustment that will appropriately compensate for the economic effects of the relationship. The nature and extent of the adjustment will depend on the circumstances of the relationship. If this analysis is right, there seems no relevant difference between married and de facto couples. It may be that intentions to create a long-term relationship, and assumptions or commitments of mutual financial support, are more commonly found among couples marrying than those forming de facto relationships but the intentions of the partners at the commencement of the partnership are hardly relevant, since the purpose of property adjustment is to respond to what actually happened in the relationship rather than what was hoped for or promised. The economic consequences of the division of functions within the relationship do not depend on what expectations were held or what promises were made or assumed to be made at its start.226

In financial adjustment, the law’s purpose is remedial — to resolve with fairness the economic consequences of the breakdown of a relationship. Fairness requires [page 272] that the law aim to equalise the economic effects that the relationship has had on the parties’ respective financial positions. This means redress of the economic disparity produced by the disparate roles that parties have played in their relationship, including recognition, when it comes to adjusting assets, of the value of different types of contribution to family welfare. On such an analysis, the legal status of the relationship is arguably unimportant — it is the effect that relationship has had on the individual parties’ financial situations that matters. Consequently, there is no real justification for distinguishing, in the context of laws governing maintenance and property distribution, between marriage and less formal relationships.227 5.89 The New South Wales Law Reform Commission, in its pioneering 1983 Report on De Facto Relationships,228 advocated a

continued distinction between the two categories of relationship. The Commission rejected the approaches of equating the legal consequences of de facto relationships exactly with those of marriage.229 Instead, it favoured remedying injustices and significant anomalies in specific areas of law.230 In recommending reforms, it was guided by a number of principles: first, the recognition of freedom of choice in a pluralist society; second, the minimisation of injustice; and third, maintaining the distinction between marriage and de facto relationships, since the former involves ‘a public commitment that is not a necessary element’ in the latter.231 The Commission significantly changed its view nearly 25 years later in its Report 113, Relationships. In this latter report, the Commission recommended that the property adjustment regime be modelled entirely on the relevant FLA provisions and that the limited maintenance rights available under the Property (Relationships) Act 1984 (NSW) be expanded to mirror those available for married couples under the FLA.232 [page 273] 5.90 In recent decades much of the policy debate focused on whether same-sex couples should be included in statutory regimes governing de facto relationships and whether the substance of the rules determining the financial consequences of the breakdown of a same-sex relationship should be the same as those applying on marriage breakdown. This issue has now been addressed in an inclusive way by all the states and territories and, since 2008 by the Commonwealth, legislating to provide for the financial consequences of de facto relationship breakdown including de facto relationships between two people of the same sex. Legislators have recognised that the rules governing financial adjustment should be the same whether the couple is married or not, since the function of the law in that particular context determines its content, and the function is the same for all

couples. This view was expressed by the then Attorney-General for Western Australia, the Hon Jim McGinty MLA, when he introduced the Family Court Amendment Bill (WA) in 2001: Except for the formalities and registration of a marriage, there is often no difference between the nature and quality of a de facto relationship and a marriage. Each may involve a high degree of stability and commitment from the parties, substantial economic and emotional interdependence and the provision of care and support for children … The rights given to de facto partners under this Bill are the same rights given to married couples. This may seem inappropriate as some people choose to have a de facto relationship because they wish to avoid the obligations that the law imposes on married couples. However, this Bill also provides de facto couples with the ability to contract out of these laws by entering into a financial agreement.233

A similar view was expressed in 2008 by the Federal AttorneyGeneral, the Hon Robert McClelland MHR, when he introduced the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth): The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 introduces significant reforms to allow opposite-sex and same-sex de facto couples to access the federal family law courts on property and spouse maintenance matters on relationship breakdown. This bill is long overdue, and gives effect to an agreement between the Commonwealth, states and territories made as far back as 2002. The bill follows the enactment of legislation by a majority of states referring necessary powers to the Commonwealth. The reforms will provide greater protection for separating de facto couples and simplify the laws governing them … The bill is consistent with the government’s policy not to discriminate on the basis of sexuality. The bill applies to both opposite-sex and same-sex de facto couples. This bill amends the Family Law Act 1975 and related legislation to create a Commonwealth regime for handling the

[page 274] financial matters of de facto couples on the breakdown of their relationship. By providing a consistent and uniform approach for de facto relationships, this bill will alleviate the administrative and financial burden currently faced by de facto couples as a result of multiple de facto regimes applying across the states and territories … This much needed reform will give separating de facto couples the same rights as divorcing couples under the comprehensive Commonwealth family law system. It provides a consistent approach to de facto property disputes across state and territory borders.234

De facto relationships and the FLA 5.91 The amendments to the FLA, introduced by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (the Amendment Act), came into effect for participating jurisdictions on 1 March 2009 (and in South Australia on 1 July 2010). The main aim of the change was to extend the financial settlement regime, which was only available to married couples under the FLA, to parties in a de facto relationship.235 The Amendment Act introduced the term ‘de facto financial cause’ to the FLA, which is a similar concept to ‘matrimonial cause’.236 As a result of this regime: Both same-sex and opposite-sex de facto couples will be able to access the family law system when their relationships break down. Instead of having to commence proceedings in two courts where there are parenting and property disputes they will be able to commence proceedings in one court. A further advantage is that they will be able to access specialist courts with a wealth of experience in dealing with financial aspects of relationship breakdown.237

5.92 With the enactment of these amendments, the arguments in support of a uniform law of property and financial rights for people in married and de facto relationships upon relationship breakdown have prevailed. (In Western Australia, which is not a participating state under FLA s 90RA, the Family Court Act 1997 [page 275] (WA) makes the same provision for couples in de facto relationships as the FLA.)238 Parties to relationships that are not de facto relationships under the FLA must continue to look to state and territory laws for relief. Even though the financial consequences of relationship breakdown for married couples and couples in de facto relationships are now the same, important social policy arguments about choice, autonomy, equality and protection continue to

inform debate about relationship recognition and the merits and scope of the FLA regime.239 Since 1 March 2009, the Family Courts have interpreted and applied the 2008 Amendment Act provisions and the FLA definition of ‘de facto relationship’ in s 4AA. The relevant provisions dealing with maintenance and property are considered in Chapters 10 and 12 respectively. 5.93 A declaration that a de facto relationship existed, as defined in s 4AA of the FLA, is significant for a number of reasons. First, Pt VIIIAB of the Act only applies to the parties to a de facto relationship that was in existence at 1 March 2009, unless both parties agreed to ‘opt in’ to the FLA provisions.240 A person seeking a property order under s 90SM or a maintenance order under s 90SE or s 90SG must satisfy the court that they have been in a de facto relationship. As observed by Cronin J in Vaughan v Bele,241 the question as to when a relationship came to an end (a threshold question) may raise the question whether it ever existed (also a threshold question).242 While it is necessary for an applicant to prove that a de facto relationship existed for the requisite period, and that it did not finally break down before 1 March 2009, it is not necessary for an applicant to prove that a de facto relationship existed on 1 March 2009.243 There are additional jurisdictional requirements for parties to bring proceedings under Pt VIIIAB, which are discussed at 6.115 and 12.4. The jurisdiction of the Family [page 276] Court, once established, is exclusive of state and territory laws dealing with the property of parties to a de facto relationship: s 90RC. Until a declaration has been made, the court does not have jurisdiction to make an interlocutory injunction pursuant to s 114(2A) of the FLA.244 The power to grant an injunction in

proceedings under Pt VIIIAB of the FLA is dependent upon the applicant establishing that a ‘de facto financial cause’ exists. In order to do so, and before an injunction can be granted, an applicant must establish facts central to jurisdiction:245 see 15.13. Although the court does not have jurisdiction to grant an injunction unless the relevant declaration has been made, in Norton v Locke246 the Full Court (Bryant CJ, Murphy and Benjamin JJ) concluded that the court does have the jurisdiction to determine whether it has the jurisdiction ‘purportedly invoked’, and has the power to ‘control its own process’ to prevent an abuse of process. Thus orders can be made for this purpose on an interim basis. Second, the existence of a de facto relationship is a threshold requirement to the Family Court’s accrued jurisdiction: see 4.88.247 Third, the existence of a de facto relationship is relevant to s 60H of the FLA which determines the parentage of a child born as a result of an assisted conception procedure. A person seeking to establish that they are a parent for the purposes of s 60H(1)(a) needs to prove that they were in a de facto relationship with the woman to whom the child was born at the time the assisted conception procedure resulting in the birth of that child was carried out.248 Fourth, the existence of a de facto relationship is relevant to parties who seek to rely upon a financial agreement as provided for in Div 4 of Pt VIIIAB of the FLA: see Chapter 15. The issue whether the parties were in a de facto relationship for the purposes of entering into a Pt VIIIAB agreement can arise as a basis of challenge to the enforceability of the agreement.249 If parties do not dispute the existence of a de facto relationship, they can decide to submit to the jurisdiction and seek orders by consent. Although a court is required to satisfy itself that a relationship within the FLA definition existed at the relevant dates, the parties’ testimony to the existence of the relationship

would typically satisfy the court of this jurisdictional fact.250 The point has been made by [page 277] Dickey that a difficulty would arise if one of the parties were to deny that the parties were ever in a de facto relationship, but nonetheless agrees to orders being made by consent (eg with the aim of bringing a property dispute between the parties to an end).251 In this case, it appears that the court would still need to hear the matter and make a determination as to whether a de facto relationship did exist.

The FLA definition 5.94

Section 4AA(1) of the FLA states:

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 …;252 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.

There are similar, but not identical, definitions in the relevant state and territory statutory regimes, which have included a formal definition of a ‘de facto relationship’ (or ‘domestic relationship’ where applicable) in their specific legislation (or in the case of Queensland and Western Australia, in their relevant ‘Interpretation’ legislation).253 These various definitions focus primarily on a ‘cohabitation model’, which draws on a strong analogy with the marriage relationship (the consortium vitae). The case law applying the cohabitation model of a de facto relationship and the meaning of s 4AA(1)(c) is discussed at 5.100–5.104. The definition of ‘domestic relationship’ in the

Australian Capital Territory legislation is broader and is not necessarily based on cohabitation. This extension in the types of domestic relationships that may enjoy statutory rights is considered at 5.112–5.113. [page 278] 5.95 The FLA and relevant legislation across Australia (except in the Australian Capital Territory and South Australia) provide a checklist of factors or circumstances to which courts are to have regard to determine the existence of the relevant de facto relationship.254 The origins of this checklist can be traced to a 1986 decision of the Supreme Court of New South Wales in D v McA.255 In this case, Powell J, who was considering the then applicable provision that required the court to be satisfied that the parties were living together ‘on a bona fide domestic basis’, commented that: … just as human personalities and needs may vary markedly, so also will the aspects of their relationship which lead one to hold that a man and woman are, or are not, ‘living together as husband and wife on a bona fide domestic basis’ be likely to vary from case to case. This being so, it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship …256

His Honour went on to list a set of non-exclusive factors or circumstances257 that have substantially been adapted into the relevant statutory definitions, including s 4AA(2). Section 4AA(2) of the FLA states: Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship.

[page 279] 5.96

Section 4AA further provides:

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (5) For the purposes of this Act: (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

As noted by Riethmuller FM in Baker v Landon,258 the definition of ‘de facto partner’ that applies to s 60H(1) is broader than the definition of ‘de facto relationship’ that applies to Pt VIIIAB. This is because s 60EA defines a ‘de facto partner’ for the purpose of s 60H to include a registered relationship: s 60EA(a). In other words, the fact that a de facto relationship is registered is conclusive evidence of the relationship for s 60EA, but is only a circumstance in s 4AA(2)(g) to which the court is to have regard for the purposes of s 4AA(1). 5.97 Consistent with general principles of interpretation, the inquiry as to whether a relationship falls within a statutory definition is to be determined according to the meaning of the words used in the statute in which it is used,259 even though case law interpreting a similar definition in other statutes can be of assistance.260 The fact that a de facto relationship is found to come within the definition in s 4AA does not necessarily mean that it

will meet the definition of a de facto relationship in another statute.261 In construing the amendments to the FLA introduced by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), the courts have applied a beneficial interpretation to the legislation, based on the remedial intent of the provisions.262 On this basis, the court in Nghiem v Truong,263 for example, held that it would be against the intent of the FLA to apply a strict interpretation of s 4AA(1)(c) that would require a de facto relationship to be in [page 280] existence specifically on 1 March 2009. Similarly, in Dahl v Hamblin264 the Full Court interpreted the words in ss 90RD(2)(a) and 90SB(a) in a way that placed a lesser, rather than a greater, burden on litigants and the courts in proving the periods of a relationship.

The nature of the s 4AA inquiry 5.98 In the cases decided since 1 March 2009, the courts have considered the nature of the inquiry under s 4AA, how the section is to be interpreted and how to apply the definition. In deciding whether a relationship between two people meets the definition of a de facto relationship, the court is not exercising a discretionary power, but is required to consider a multitude of circumstances in order to make a factual determination. In Ricci v Jones,265 the Full Court approved the following statement made by Murphy J in Jonah v White:266 In my view, the making of a declaration of the type contemplated by s 90RD of the Act does not involve the exercise of a judicial discretion. The question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations) which founds the

jurisdiction to make orders of the type contemplated by that part of the Act. The ultimate question is in the nature of a jurisdictional fact.267

The essential question is whether the parties’ relationship was a de facto relationship as defined by the legislation. That question must be considered on a case-by-case basis. In proceedings under Pt VIIIAB, if that question is decided in the affirmative, the court has jurisdiction to determine an application for alteration of property interests and maintenance between the parties to the proceedings. 5.99 A party asserting that the court has jurisdiction must prove the existence of a de facto relationship as defined by the legislation and any facts that go to the jurisdiction of the court.268 While the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed, s 4AA(4) provides that the court may attach whatever weight it considers appropriate to the matters it determines are relevant to the inquiry. Accordingly, in Taisha v Peng,269 Cronin J held that although the Evidence Act 1995 (Cth) applies (see ss 4(1) and 140 of that Act, where the latter section requires the court to apply the balance of probabilities [page 281] standard of proof), for the purpose of satisfying of s 4AA(1) ‘the weighting and the balancing task is much less formal than in other civil proceedings’.270 A perusal of the cases in which the existence of a de facto relationship or its existence on a particular date is denied, reveals the highly personal and intimate nature of much of the evidence that will be presented by the parties and scrutinised by the court, including letters, emails, text messages and affidavit evidence. In this way, the details of the parties’ private lives are laid bare, much

as they were in the days before no-fault divorce. Making this observation, Behrens justifiably concludes: Unless we are prepared for the adjustive powers in the FLA to hinge on marriage or relationship registration, there is probably no alternative.271

The credibility of the evidence presented by the parties will be important to the court’s factual determination. The court may need to decide what weight to attach to the evidence presented by the parties and decide between conflicting accounts of the facts based on the credibility of the parties and their witnesses. A court will not necessarily make adverse findings of credit in relation to either of the parties or their witnesses, and may accept that each of the parties may have presented their evidence accurately from their perspective.272 On other occasions when the evidence is in conflict, a court will indicate the extent to which they prefer the evidence of one party over the other and may even find one party to have been lying.273

The key concepts — ‘a couple living together on a genuine domestic basis’ 5.100 The FLA definition in s 4AA(1) requires the court to determine whether two people ‘have a relationship as a couple living together on a genuine domestic basis’. The courts have been applying similar, but not identical, provisions in New South Wales and Queensland for some time. In Baker v Landon,274 Riethmuller FM set out the legislative history of s 4AA and the requirements that need to be satisfied in order to determine the existence of a de facto relationship. He referred to a number of important differences in the wording of s 4AA: Although the section is said to be modelled on the provisions of the New South Wales Property (Relationships) Act, there are differences. Section 4 of the NSW Act refers to adults who ‘live together as a couple’, whereas the Family Law Act provision refers to ‘a relationship as a couple living together on a genuine domestic basis’. In the list of factors to be taken into account in NSW the provision includes s 4(2)(h), ‘the performance of household duties’.

[page 282] Provisions to the effect of s 4AA(5) of the Family Law Act are absent from s 4 of the Property (Relationships) Act. Most significantly, the context of the two provisions is very different.275

Nonetheless, decisions based on the legislative definitions in Queensland and New South Wales have been considered to be instructive.276 What does it mean then to be in ‘a relationship as a couple living together on a genuine domestic basis’? 5.101 Two leading cases in which the courts have construed the definition in s 4AA(1) are Moby v Schulter277 and Jonah v White.278 According to Mushin J in Moby v Schulter, the concept of ‘genuine domestic basis’ must be seen not as ‘a term of art but rather, it must be given its ordinary meaning’.279 Mushin J considered there to be two specific elements of the definition that require individual attention: the concept of a ‘couple’ and the concept of ‘living together’. The phrase ‘living together’ is not to be taken in isolation and read to require that de facto couples always live together.280 However, once the parties to the proceedings are found to be a couple who have lived together, the issue becomes one of whether that was on a genuine domestic basis.281 Notably, a ‘mutual commitment to a shared life’ is one of the various circumstances to which the court is to have regard, but it is not identified as an essential characteristic of a de facto relationship.282 According to Mushin J in Moby v Schulter, the concept of ‘genuine domestic basis’ includes the diversity of the relationships that can fall within that definition.283 That diversity is reflected at the formation stage, in the phases that a de facto relationship can pass through and through the potential for parties to suspend or end and recommence their relationship with none of the formalities and legal certainties associated with marriage. For this reason, and in light of a number of other significant differences between marriage and a de facto relationship, Mushin J doubted

the appropriateness of drawing parallels between them. The differences that his Honour points out can be summarised as follows. First, unlike marriage, there are no formalities to be satisfied to enter into a de facto relationship and no certificate that proves that the relationship has commenced. Second, a marriage [page 283] can only be between a man and a woman. In contrast, the FLA definition includes same-sex de facto relationships. Third, it is a criminal offence for a person to be a party to two marriages simultaneously. The FLA enables a person to be in two de facto relationships or one or more de facto relationships and a marriage simultaneously. Fourth, while the legislation includes ‘the degree of mutual commitment to a shared life’ as one of the relevant circumstances, sometimes referred to in the context of marriage as consortium vitae, there is no requirement that there be such a commitment in order for a de facto relationship to exist. In Jonah v White, Murphy J continued the inquiry into the concept of being ‘a couple’. In that case the applicant, a woman, sought a declaration pursuant to s 90RD that a de facto relationship existed with the respondent. The parties had been in a relationship for 17 years. During that time the respondent, a man, lived with his wife and children in the matrimonial home. The applicant lived by herself in her own residence. The parties were together regularly for periods of time during which they enjoyed a loving, sexual relationship. The court accepted that there were some pointers towards the existence of a de facto relationship. The relationship was longstanding, and the parties maintained a consistent sexual relationship — exclusive of other partners in the applicant’s case and for the most part in the respondent’s case (although the respondent maintained a sexual relationship with his wife and had a few ‘one-night stands’). The respondent had also provided financial support to the applicant

for a number of years and made financial contributions to her home. On the other hand, there were a number of indicia that pointed to the opposite conclusion and led Murphy J to decide that the evidence as a whole revealed the parties to be two people who each sought to, and did in fact, maintain separate lives. Factors significant to this conclusion included the absence of joint finances or property, the ‘clandestine’ nature of the relationship, the fact that they did not socialise as a couple, and the paucity of evidence as to any public aspects to their relationship. The absence of evidence of what is described by Murphy J as ‘coupledom’ or ‘merger’ in this case precluded a finding that the parties were a couple living together on a genuine domestic basis, and the application was dismissed. In relation to the concept of being a ‘couple’, his Honour stated: In my opinion, the key to that definition is the manifestation of a relationship where ‘the parties have so merged their lives that they were, for all practical purposes, “living together” as a couple on a genuine domestic basis’. It is the manifestation of ‘coupledom’, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed. … It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are ‘living together as a couple on a genuine domestic basis’ or that the maintenance of separate residences is

[page 284] necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union — the merger of two individual lives into life as a couple — that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a ‘de facto relationship’.284

Other judicial elaborations have followed. For example in Zau v Uong,285 Cronin J stated there must be ‘a degree of interdependence between the parties of an emotional, financial or physical nature’. In Crowley v Pappas,286 Tree J said ‘the gist of the inquiry is the degree to which parties have merged their lives into one’. The Full Court has warned, however, against straying away from the wording of the Act. On appeal in Jonah v White,287 the Full Court (May, Strickland and Ainslie-Wallace JJ) agreed with Murphy J’s conclusion that the definition in s 4AA(1) may be fulfilled where parties have lived together for limited periods. They make clear that this will only be the case, however, where other indicia or the circumstances of the matter enable a finding that they were ‘living together on a genuine domestic basis.’ This statutory definition is ‘the “touchstone” for the determination of whether a de facto relationship exists’.288 The Full Court has reiterated on several occasions that comments made in the course of discussing facts — such as those by Murphy J in Jonah v White289 about whether the parties had ‘so merged their lives that they were, for all practical purposes, “living together” as a couple’ — are ‘not to be elevated to the status of the provisions of the statute or substituted for the statutory test’.290 The difficulty remains that the words in the provision themselves do not have a clear meaning. This is even more so if no equivalence is to be drawn with marriage. 5.102 The ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court, and not the parties, nor their witnesses; accordingly, the perception of parties as to the nature of the relationship, while relevant, cannot be determinative.291 The courts recognise that the two parties [page 285]

to a relationship often perceive the same thing, including their relationship, in entirely different ways. As a result, the parties may take an entirely different view of the circumstances. Notwithstanding that this can lead to considerable uncertainty (and conflict) over the legal nature of their relationship, the existence of a de facto relationship is a question of fact, not perception. The fact-based nature of the inquiry as to whether the FLA definition of ‘de facto relationship’ is satisfied, and the application of the statutory definition to the wide variety of couple relationships that exist in Australian society, make it difficult to predict the outcome in some cases, adding uncertainty about the application of the law. In turn this poses challenges for lawyers advising their clients. As Conlan remarks: The task is further complicated by issues such as the stage of life and culture of the parties as well as the context of the relationships and how these broader matters impact on the application of s 90SM(3) as to whether it is just and equitable to make a property order in a particular set of circumstances.292

5.103 As we have seen at 5.93, the definition in s 4AA(1) is also relevant to s 60H of the FLA, which determines the parentage of a child born as a result of an assisted conception procedure. In Keaton v Aldridge,293 the court had to determine whether two women were in a de facto relationship for the purposes of s 60H(b). In applying the definition in s 4AA, Pascoe CFM considered the determination of the point at which relationships cross an ‘invisible line’ to be perhaps the most difficult task for the court. Without the solemnities and formalities accompanying the formation of a married relationship, same-sex relationships, according to the Chief Federal Magistrate: … are fluid in the sense that it is difficult for them to discern what, if any, circumstances will carry them across an invisible line to be a relationship recognised by law.294

This fluidity, it is submitted, is not a feature of relationships that is confined to same-sex relationships. In addition to the difficulty of ascertaining what circumstances

will carry a relationship ‘across the line’, it can also be difficult to identify a precise moment that it has crossed that line because de facto relationships develop over time. In Keaton v Aldridge, Pascoe CFM concluded that the parties were not in a de [page 286] facto relationship at the time the respondent underwent an assisted conception procedure by working through the indicia in s 4AA(2) and making findings of fact relating to those indicia: see the discussion at 5.107–5.108. Baker v Landon295 was another case in which an application was made to the court for a declaration as to the paternity of a child conceived as a result of assisted conception procedures. The male applicant in this case claimed to be entitled to a declaration that he was a parent of the child pursuant to s 60H(b) on the basis that he was in a de facto relationship with the mother of the child at the relevant time. After considering each of the factors in s 4AA(2) and taking the circumstances of the case as a whole, Riethmuller FM concluded that the applicant was a de facto partner of the respondent at the relevant time: see the discussion at 5.107–5.108.

Multiple relationships 5.104 As observed above, a person can be living as a couple in a genuine domestic relationship with more than one person at a time. This is evident from s 4AA(5)(b), which states: A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

This provision plainly allows for a de facto relationship to overlap with a marriage; for example, where the marriage has broken down, but the parties to the marriage have not divorced. However, the wording of s 4AA does not confine the definition to

this circumstance and it is possible therefore, provided the s 4AA definition is met, for a person to be in more than one de facto relationship at a time or while living in a marriage that has not broken down.296 In this situation it may be difficult, but it will not be impossible, to show that a person has been living as a couple in a genuine domestic relationship with more than one person at the same time.297 The difficulties that may arise in proving that a de facto relationship existed between two people when one (or both) of the parties was in an intact marriage (or another de facto relationship) are illustrated by Jonah v White,298 discussed at 5.101. The inherent tension in finding that multiple ‘marriage-like’ relationships coexist, given that marriage is defined as a monogamous relationship, has not [page 287] passed unnoticed by commentators299 or the courts. In Truman v Clifton,300 a case in which the definition of ‘de facto relationship’ in s 13A of the Interpretation Act 1984 (WA) applied, Thackray CJ had to decide whether a ‘marriage-like’ relationship existed between the parties. Section 13A(3)(b) is in similar terms to s 4AA(5)(b) of the FLA. Thackray CJ suggested that s 13A(3)(b) is somewhat puzzling, posing the question: … how can a couple be in a ‘marriage-like’ relationship if at the very same time they are also in the same sort of relationship with another person?301

Finding no answer to this question in the Second Reading speech of the Attorney-General when the provision was before parliament, his Honour continued: In my view it might come as a surprise to a citizen of Western Australia to learn that a man can carry on a relationship with two women at the same time and yet have both relationships described as ‘marriage-like’. Such conduct would be more likely to be seen as ‘playing the field’. It would be unlikely to be seen as consistent with the ‘mutual commitment … to a shared life’ which the legislation lays down as one indicator of a marriage-like relationship. Such conduct could also impact

upon the ‘the reputation, and public aspects, of the relationship’ if the second relationship is not kept entirely secret. Although I do not have the benefit of submissions, it occurs to me there is one way in which the legislation can be interpreted so as not to distort beyond recognition the generally accepted concept of marriage in western society. This approach proceeds on the basis of an acceptance that the permutations of intimate relationships are infinite. For example, we sometimes hear of men who lead ‘a double life’. They have one woman in one place and one in another, with the existence of both known only to him. Each of the women (and those who know them) may consider they are in a committed relationship and accept it is an unfortunate reality that their partner has to travel so often. Parliament may have wanted to put beyond doubt that women placed in that position would not be denied the beneficial effect of the legislation. In my view, what Parliament has done, very wisely, is to repose in the courts a considerable discretion in determining whether a relationship is ‘marriage-like’. Section 13A(3)(b) is just part of the way in which Parliament has achieved that objective.302

[page 288] While such situations may often arise out of duplicity, that will not necessarily be the case; there may be a range of reasons why such a situation comes into being. Further, the community of people who identify as ‘polyamorous’303 benefit from recognition of multiple relationships. Ultimately, however, the section talks of ‘marriage-like’ precisely because it is distinguishing these relationships from marriage. The tension between a de facto relationship being ‘marriage-like’ but not monogamous by definition has potential constitutional significance. As the referral of power by a number of states to the Commonwealth was in terms of power over ‘marriage-like’ relationships, the question has been raised whether this inherently precludes the conferral of FLA jurisdiction over a relationship that is not monogamous. This question has been alluded to both judicially304 and in commentary,305 and remains unresolved. It is also evident that the periods of time in which two people were in a de facto relationship can be aggregated to calculate the duration of the relationship for Pt VIIIAB purposes, even though

during a period of suspension or cessation of the latter relationship, one or both of the parties was in a married or de facto relationship with a third person.306

The circumstances of the relationship 5.105 Typically, a court will set out the evidence that relates to each of the circumstances referred to in s 4AA(2) and what weight is attached to that circumstance in making the overall assessment of whether the relationship satisfies the definition in s 4AA(1) (c).307 No particular finding in relation to any circumstance is necessary in order to find that the parties have a de facto relationship.308 The courts can also consider other relevant circumstances. In Baker v Landon,309 for example, Riethmuller FM took into account that the parties had relationship difficulties related to the applicant’s substance abuse, and that the respondent was receiving a pension on the basis that she was not in a de facto relationship under the Social Security Act 1991 (Cth). As a general proposition, [page 289] it is to be expected that the fewer the circumstances found to be present, the less likely it is that a court will find a de facto relationship exists. This proposition is supported by the Full Court’s decision in Ricci v Jones.310 In that case, the applicant was a woman who claimed to be in a de facto relationship with a man who was the father of her child. The male respondent did not dispute paternity of the child or that the parties had been in a sexual relationship as claimed by the applicant. The applicant filed an affidavit and other documents in support of her application for property orders. The respondent filed a brief affidavit in which he denied that the parties had ever been in a de facto relationship. The federal magistrate who heard the matter at first instance

dismissed the application on the basis that the evidence did not support a conclusion that the parties had been in a de facto relationship, even though every fact asserted by the applicant about their relationship was assumed by the magistrate to be accurate. The Full Court dismissed an appeal against the magistrate’s decision. Even with all the facts stated by the applicant assumed to exist, given the absence of evidence of circumstances in s 4AA(2) other than facts not denied by the respondent, the magistrate was found to have been justified in concluding that the parties were not in a de facto relationship. The circumstances set out in s 4AA(2) are relevant to the factual question whether and when a de facto relationship between the parties was in existence. The FLA stipulates that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship (s 4AA(3)), and that in determining whether a de facto relationship exists, a court is to have regard to such matters, and to attach such weight to any matters, as may seem appropriate in the circumstances of the case (s 4AA(4)). It follows that it would be an error for a court to require every or any particular circumstances in s 4AA(2) to be present. There is considerable overlap with respect to some evidence that may go to a number of separate indicia.311 In making the factual decision involved in determining whether s 4AA is satisfied, a court is not only to identify particular circumstances that are relevant, but also to ‘step back and consider the matter as a whole’.312 5.106 The court is to have regard to the duration of the relationship: s 4AA(2)(a). The length of time that the parties have been in a relationship with each other does not determine whether they have been in a de facto relationship, but when a relationship does meet the definition of a de facto relationship, the length of that relationship is a qualifying factor for jurisdictional purposes: s 90SB(a) (two years). The duration of the relationship will also be significant to maintenance orders

[page 290] and orders for the alteration of property.313 The duration of a relationship will be calculated taking into account periods of suspension in the relationship: see 6.116. 5.107 The nature and extent to which the parties have shared a common residence (s 4AA(2)(b)) is closely connected to the key concept of ‘living together’ in a genuine domestic relationship, discussed at 5.101–5.105. In Ricci v Jones,314 the Full Court stated: We are of the view that minds might reasonably differ as to this interpretation of the subsection that would require a putative de facto couple to have lived together before satisfying the legislative test …315

The court was not required to reach a decision on this question because the appeal failed on other grounds. The Full Court agreed with the view expressed by Murphy J in Jonah v White316 that common residence (whether for varying periods of time or not) is but one of the specific factors within s 4AA of the Act. The Full Court went on to say: It is in our view clear from a reading of the section, and a consideration of the authorities both in this court and in others, that cohabitation can be relevant but is by no means determinative.317

While this view is consistent with the view expressed by the Full Court in Jonah v White and subsequent cases,318 it will be difficult to show that a couple have been ‘living together on a genuine domestic basis’ without evidence that they have shared a common residence for at least some time during their relationship. As is the case with married couples, there is no blueprint for the way that people live together in a ‘genuine domestic relationship’ because work and other interests and commitments may affect the extent to which the parties share a common residence. Arguably, it is the nature of the common residence that is most significant to s 4AA. In Jonah v White, Murphy J found that the parties were not in a de facto relationship even though they lived together on

occasions during the 17 years of their relationship. In this case, it was significant that the parties maintained separate residences and kept their relationship secret. In other cases [page 291] in which the court has held the definition of a de facto relationship was not met, the parties had separate residences319 and did not live together.320 That said, it is clear from the FLA that the extent of co-residence, which includes the length of time spent living together, is also indicative. The continuation of a common residence, after the relationship is alleged to have broken down (see 6.113ff), can be significant to the determination of the date at which the relationship ended. In Vaughan v Bele,321 the court found that the parties continued to reside in a common residence even though the respondent stayed at another address on various occasions prior to the date on which the relationship was held to have ended. In Vine v Carey,322 the respondent submitted that his relationship with the applicant had broken down before 1 March 2009. They continued to live in the same residence, although the respondent had started to go away for weekends on his own. The court found that, despite the fact that the parties started to sleep in separate bedrooms and the nature of their intimate sexual relationship had changed, in other respects the way they lived together did not change. In addition to living in the same household, they maintained the same financial arrangements and the same sharing of household tasks; they continued to socialise, including holidaying together, and continued to provide support to one another inside and outside the household. They were found to have continued to be in a de facto relationship until the applicant ended it when she found out that the respondent was having an affair with another woman. Even after the de facto

relationship was at an end, the parties continued to live in the same house.323 In the reverse, a de facto relationship can continue even after the parties no longer share a common residence. This is illustrated by the recent decision in Crisp v Clarence,324 which concerned a parenting dispute between two women in a lesbian relationship. Issues arose concerning the parentage and parental responsibility of a child who was born as a result of an assisted conception procedure. The applicant, who was a biological progenitor of the child, sought a declaration that she was a parent of the child, certain parenting orders and for the child’s birth certificate to be amended to include the applicant as a named parent. The respondent argued that the applicant should be known only as a donor and not as a parent, and resisted the orders sought by the applicant. The court was required to decide whether the parties were in a de facto relationship at the date of conception of the child. This would determine whether the parties were ‘de facto partners’ for purposes of s 60HA(1) and parentage of the child pursuant to s 60H(2) of the Act. It was agreed between the parties that they were in a de facto relationship from 2004 until 21 March 2011. For some time before this date, the respondent had been trying to [page 292] conceive a child through IVF. Both parties attended a clinic in May 2011 and signed a consent form for IVF treatment. A number of the applicant’s ova were harvested and fertilised with donated sperm. On 31 May 2011, the applicant provided one of her embryos which was implanted in the respondent. The child was conceived on 11 July 2011 and born in April 2012. The parties had physically separated on 21 March 2011, when the applicant moved out of the respondent’s house and moved into another residence. The applicant contended that the parties did not

separate before August 2011. The respondent contended that they separated on 21 March 2011. The court held that their de facto relationship existed when the child was conceived on 11 July 2011, notwithstanding that the parties were no longer physically living together at that time. A consideration of the nature of the relationship of the parties in the days leading up to the embryo transfer and immediately following implantation was critical. There was evidence that the parties exchanged emotionally charged text messages and socialised on an ongoing basis after their physical separation; that the applicant was a frequent visitor to the respondent’s home after the separation; and that the parties continued a sexual relationship and engaged in sex three days before the conception of the child in July 2011.325 Berman J concluded that the parties had not severed all aspects of their relationship with one another following the separation in March 2011. His Honour found that notwithstanding their physical separation in March 2011, the entire focus of the parties was to explore reconciliation. Ultimately their endeavours were unsuccessful, but his Honour accepted that they were genuine in their pursuit of an ongoing relationship that would have a child as its focus. While there was volatility in their relationship both before and after their physical separation, Berman J concluded that their conduct towards each other and their public representations and engagement were not significantly different to those that existed in happier times.326 Specifically, his Honour found that the applicant did not indicate the clear intention that the relationship was over as at 11 July 2011.327 Accordingly, and notwithstanding the physical separation of the parties, their de facto relationship endured and continued beyond 11 July 2011. 5.108 In considering the existence of a sexual relationship between the parties (s 4AA(2)(c)), a court may be required to consider the duration and the continuity of a sexual relationship between the parties, and any explanations given for the change in

their sexual relationship over time. In Keaton v Aldridge,328 for example, the parties had been in a sexual relationship, but the court found that there was no sexual intimacy between the parties at the time of the conception of the [page 293] child at the centre of the proceedings. As seen in Vine v Carey,329 above, a de facto relationship was found to have continued after the parties no longer had sex. In Ricci v Jones,330 it was undisputed that the parties had a sexual relationship and that the parties had a child as a result of that relationship, but in the absence of other circumstances identified in s 4AA(2), the s 4AA definition was not satisfied. The absence of evidence of a sexual relationship between the parties will make it difficult for the applicant to discharge the onus of proving that they were in a de facto relationship,331 even where there has been an extended period of common residence.332 As observed in Jonah v White,333 the fact that a party to an alleged de facto relationship was in a sexual relationship with a third party at the same time (that party’s wife) was not a disqualifying factor, because ‘exclusivity is not a necessary element of a de facto relationship’: s 4AA(5)(b). The courts distinguish between a sexual relationship and sexual acts provided in exchange for payment. In Barry v Dalrymple,334 the applicant, aged 36 years and described by the court as a ‘live-in personal assistant/carer’ for the 77-year-old respondent, lived in the respondent’s property. The court found the evidence did not establish that a relevant sexual relationship existed between the parties, as the evidence was that on at least three of the four occasions on which the parties had sexual contact, the applicant was paid to perform sexual services for the respondent.335 In Regan v Walsh,336 the court accepted the respondent’s submission that

his relationship with the applicant was one of ‘friends with benefits’; the parties having a sexual relationship and shared residence at various times, rather than a relationship of a genuine domestic character. In other cases, notwithstanding evidence of a sexual relationship between the parties at some time, the overall circumstances have led to the conclusion that the relationship was one of employer/employee,337 housemate/tenant338 or business associates,339 rather than a de facto relationship. 5.109 The financial relationship between the parties (s 4AA(2) (d)) will be significant to determining whether they have ‘pooled’ their resources as a couple. In Dakin v Sansbury,340 the applicant was found to have been financially [page 294] dependent on the respondent for almost seven years. During that period the respondent paid for all rental on the applicant’s accommodation, contributed to her living expenses and during one phase of their relationship, ‘albeit with some reluctance’, totally and completely supported her and her son. In the light of this and other circumstances, Bender FM concluded that the parties were in a de facto relationship. Similarly, in Smyth v Pappas341 and Moby v Schulter,342 the provision of financial support by one party to the other was a relevant circumstance. In Ricci v Jones343 (see 5.100, 5.107), the Full Court observed that the findings as to the degree of financial dependence will only be as good as the evidence submitted. It is incumbent therefore on the party who bears the onus of proof to provide evidence of this nature, and the absence of evidence to establish financial dependency or interdependency or support is likely to be significant to the outcome. While financial independence is a matter to be considered, the courts are alert, however, to the

reality in contemporary society that financial independence is ‘not uncommon in modern relationships including marriages’.344 5.110 A related consideration is the ownership, use and acquisition of property: s 4AA(2)(e). In Sinclair v Whittaker,345 the parties purchased a unit together, with the appellant contributing the deposit and paying the stamp duty. The unit was owned 70 per cent by a corporation controlled by the appellant and 30 per cent by the respondent. The parties each contributed to a joint fund that was used for furnishings and household contents for the unit. The respondent lived in the unit and the appellant stayed there, on average, three nights per week. The parties were found to be in a de facto relationship. The fact that the respondent had represented her marital status to lending institutions and government agencies as ‘single’ rather than ‘de facto’ was not determinative of the legal status of the parties’ relationship. The court is to consider ‘the degree’ of a mutual commitment to a shared life (s 4AA(2)(f)) between the parties, which reflects the absence of any bright line between existence and non-existence of a de facto relationship and the reality that the degree of commitment of one or both of the parties may vary during the time that the parties are in a relationship. In Moby v Schulter,346 the court considered the evidence that the respondent had leased a property — which the parties used jointly two weeks out of four for the purpose of living their life together — corroborated the applicant’s assertion that the parties had a mutual intention to share their lives. The decision to conceive and raise a child together is a significant factor. However, in Keaton v Aldridge,347 although the court was [page 295] satisfied that the parties shared much of their social life together, the evidence regarding the couple’s intention as to the role that

the applicant would play in the life of the child that the respondent planned for, conceived and gave birth to, demonstrated in the court’s view ‘a high degree of doubt as to the couple’s mutual commitment to raising a child together and, to a lesser extent, to each other’.348 In Baker v Landon,349 the court took into account the parties’ agreement to marry, the extent of the applicant’s involvement in the life of the respondent’s son, and the conduct and statements made by the parties while in an IVF program as evidence of a significant commitment to a shared life under this paragraph. The court noted: The applicant was emotionally committed to the respondent and the child, even having their names tattooed on his forearms in large lettering.350

5.111 The care and support of children is a significant circumstance (s 4AA(2)(h)), as a commitment to raising a child together is a strong indicator of a couple living together on a genuine domestic basis.351 Pascoe CFM regarded this as one of the most important factors in determining whether the parties in Keaton v Aldridge352 had crossed an ‘invisible threshold’ to be in a relationship recognised by law. This aspect of the parties’ relationship occurs after the child’s conception, which is the date at which it must be proved that a de facto relationship existed (s 60H): see 5.93. In these circumstances, as in Keaton v Aldridge, the court will look to what occurred after the child’s conception and whether that was a reflection of the parties’ mutual commitment to each other at the time of conception. In this case, the court noted that although the applicant’s surname was one of the child’s middle names and that this was to reflect the applicant’s role in encouraging the respondent to have a child, the respondent’s evidence was that when the child’s birth was registered, she did not want the applicant on the birth certificate in any capacity.353 In Ricci v Jones,354 although there was a child conceived as a result of a sexual relationship between the parties, the only evidence of financial support was that before the child was born, the respondent gave the applicant some money towards purchases for the baby. Other than that, it appeared the

respondent had not seen or had any contact with the child and nothing further to do with the applicant. The child, for whom care and support is provided, need not be a child [page 296] of the relationship. In Smyth v Pappas,355 with reference to a child of the applicant who had a close association with the respondent, Cronin J noted: The child, T, participated in this relationship but unlike many step-parenting families, the relationship between the child and the respondent was often indistinguishable from that of a biological parent and child. The respondent’s statement at the end of the life of the relationship about the longevity of his role in T’s life indicates it was a very important aspect of his relationship with the applicant.356

Contrast Dandridge & Barron,357 where a couple who had two children during the time of their relationship of approximately 10 years’ duration were not found to be in a de facto relationship. The applicant was the primary carer of the children. The court found there had been a longstanding sexual relationship, a degree of financial support of the applicant by the respondent and some aspects of being a ‘couple’. Factors that led the court to conclude there was not a ‘committed domestic relationship’, but rather one of ‘boyfriend and girlfriend’, include that the applicant maintained her own residence throughout the majority of the relationship and that she held herself out to Centrelink and the Child Support Agency as being financially independent. 5.112 Registration of the relationship under a prescribed law of a state or territory as a prescribed kind of relationship is a circumstance (s 4AA(2)(g)), and not a defining factor, for the purposes of s 4AA. This is in contrast to the definition of ‘de facto partner’ in s 60EA(a): see 5.96. The point has been made that a court ought not to place too much significance on the fact that an alleged de facto relationship is not registered when registration is

available under state or territory law, because there may be reluctance by couples to register their relationship. In making this point in relation to a same-sex couple in Keaton v Aldridge,358 Pascoe CFM stated that he gave no weight to the lack of registration of the relationship in question in that case. 5.113 The reputation and public aspects of the relationship (s 4AA(2)(i)) provide an objective view of whether the parties are living in a relationship as defined by s 4AA(1)(c). The evidence of family members, friends, neighbours and other members of the community is important to establish whether, in the eyes of others, the parties were living together as a couple. This was a significant factor in Baker v Landon,359 for example, where the court found that family members [page 297] understood the parties to be in a de facto relationship and intending to marry. Attending work and social functions together may be significant, as in Vaughan v Bele,360 where the court placed weight on the fact that the parties continued to co-parent, go on holidays and go bike riding together, and attend ballroom dancing and dinner functions together. In this case, and having regard to these activities, Cronin J concluded: On any view, someone outside looking in would perceive the applicant and the respondent as a committed family…361

The absence of any public ‘reputation’ as a couple was significant in Jonah v White362 (see 5.101), which suggests that the more privacy (or secrecy) there is surrounding a relationship, the more difficult it will be to show that it had this public aspect. By the same token, a court may place less significance on public demonstrations of ‘coupledom’ at a point in time when the relationship is troubled or breaking down. In Aitken v Deakin,363 for example, the court placed little store on the fact that the

respondent introduced the applicant as her partner at a family function because the court concluded on other evidence that the relationship had broken down by that time.364 The difficulties of focusing too much attention on the public aspects of the relationship have not gone unnoticed. For example, an inquiry into whether two people were perceived within their community or communities as ‘a couple’ can deny, as Behrens points out: … the important insight that some same-sex couples may not disclose their relationship because of ongoing concerns about discrimination against them.365

Another difficulty arises when a person in a relationship that arguably meets the s 4AA definition denies that relationship in FLA proceedings in order to retain their status as recipient of social security as a single person. To some extent, this difficulty is addressed by the courts’ recognition that there are differences between s 4AA and other legislative definitions, and that a person in a relationship sufficient to satisfy the FLA definition may not satisfy the relevant provision of another Act, for example the Social Security Act 1991 (Cth).366 [page 298]

Existence of the relationship over time 5.114 The duration of the parties’ relationship is only one of many circumstances included in s 4AA(2) for consideration. There is no requirement for the relationship to have been of any particular duration in order to satisfy the definition in s 4AA(1). Circumstances will arise where a court is required to calculate the duration of the relationship and the point in time at which the relationship ended.367 Each of these findings is relevant to the jurisdiction of the court to make orders under Pt VIIIAB: see s 90SB; 6.113ff. These cases shed light on the meaning of the

relevant FLA provisions and, more generally, the nature of a de facto relationship. In Hamblin v Dahl,368 Demark FM found the applicant and respondent were in a de facto relationship between March 1994 and December 1998, and again between April 2008 and October or December 2009. Her Honour held that if two parties renew or recommence a relationship then, absent something extraordinary, they are renewing or recommencing the same relationship they had earlier. She continued: It would appear to be a fiction to suggest that two earlier intimates commenced a new relationship, rather than entering a new phase of their lapsed or previous relationship.369

Her Honour also concluded that an intimate relationship between one of the parties to a de facto relationship and a third party during a lapse or period of suspension of the first de facto relationship does not preclude the latter relationship being renewed or recommenced. These conclusions were upheld by the Full Court in Dahl v Hamblin.370 The Full Court also held that the periods of a de facto relationship that existed both before and after the commencement date of Pt VIIIAB can be aggregated for the purposes of calculating the duration of the parties’ de facto relationship. The parties’ relationship can be found to have gone through a number of different phases. In Moby v Schulter,371 Mushin J made a finding to this effect, stating: The facts applicable to each of those phases may be seen as having a different bearing on the essential issue of whether the parties were in a de facto relationship

[page 299] … [I]t cannot be said that the parties’ relationship continued as a ‘de facto relationship’ in accordance with the legislation during the periods of separation. They did not live together, they had no mutual intention as contemplated by the legislation and their sexual relationship ceased.372

De facto relationship declarations 5.115 In the same way that the Family Court can make a declaration as to the validity of a marriage (s 113 of the FLA, and see 6.107–6.108), the court has power under s 90RD to make a declaration about the ‘existence of de facto relationships’ for the purpose of the FLA. Effectively, s 90RD facilitates the early determination of ‘gateway issues’373 arising out of personal maintenance applications (ss 90SE and 90SG), property declarations (s 90SL) or property applications (s 90SM).374 If made, the declaration has effect as a judgment of the court.375 The power to grant a declaration of the existence of a de facto relationship is only for the purposes of these proceedings (s 90RD(1)) and not at large. The parties therefore must be seeking some substantive relief under these provisions of the Act. In addition, pursuant to s 90RD(2): A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following: (a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a); (b) whether there is a child of the de facto relationship; (c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); (d) when the de facto relationship ended; (e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

The relevant court may subsequently set aside (or vary) the declaration made under s 90RD,376 but in that event, the setting aside ‘does not affect anything done in reliance on the declaration while it remained in force’.377 [page 300]

Relationship registration schemes 5.116 Five jurisdictions (Tasmania378 since 2003, the Australian Capital Territory379 since 2008, Victoria380 since 2008, New South Wales381 since 2010 and Queensland382 since 2012: see 5.119) provide de facto partners with an option to register their relationship.383 According to the New South Wales Law Reform Commission, the major benefits of a system of relationship registration: … are certainty and autonomy; the parties to a relationship can be readily identified and have demonstrated that they know about, and agree to be bound by, the legislation. Further, parties who would not come within [the New South Wales Act] on a presumptive approach because, for example, they do not live together, could elect to bring their relationship within the legislation. An additional benefit is the symbolic value of registration. It enables people who do not wish or are legally unable to marry, such as lesbian and gay couples, to have their relationship formally acknowledged by the State.384

In spite of these and other benefits of providing for relationship registration, it has been argued that their potential benefits and the value of choice may have been somewhat hidden in the public debate about marriage equality.385 Rundle has argued: Greater consistency between jurisdictions is needed for non-married relationship registries to meet their potential. At present there is no nationally consistent, mutually recognised scheme for non-married relationships … If Australians are to benefit from a functional and viable alternative to marriage, better coordination and consistency is required.386

[page 301] Even with the introduction of relationship registration systems as an alternative to marriage, and the benefits this can offer, concerns have been expressed that registration should not be the sole means of relationship recognition: A significant concern is that this approach relies upon couples being informed about the legislation and taking active steps to bring their relationship within the

[legislative regime]. In addition, it forces individuals in same sex relationships to make a public declaration of their sexual orientation before they can benefit from the legislation. Concerns about homophobia may mean couples are disinclined to make such a declaration. Same sex couples may also be hesitant about participating in a form of relationship recognition that is perceived as a ‘second best’ option.387

As seen in 5.108, the courts have recognised that it is not appropriate to attach undue significance to the fact that the parties to an alleged de facto relationship did not register their relationship under state or territory legislation when applying the provisions of the FLA.388 5.117 At a practical level, one benefit of registering a relationship under state or territory legislation is that one of the criteria for determining whether a de facto relationship exists under s 4AA of the FLA is, by subs (2)(g): Whether the relationship is or was registered under a prescribed law of a State or Territory.

Another practical advantage of registration is that, pursuant to s 90SB, registration enables a de facto relationship of less than two years’ duration to be the subject of orders made under s 90SE, s 90SG or s 90SM, or a declaration under s 90SL. For the purposes of ss 4AA(2)(g) and 90SB, the Family Law Regulations 1984 (Cth) currently recognise relationships registered in the Australian Capital Territory,389 Queensland,390 Tasmania391 and Victoria.392 [page 302] Millbank has suggested that although the Australian registration and civil partnership schemes are open to both same-sex and heterosexual couples, they are likely to be primarily utilised by same-sex couples.393 She also notes that civil union and civil partnership schemes, such as those that exist in New Zealand and the UK, are at present not prescribed394 and so have no effect. Millbank concludes that:

… the references to ‘State or Territory’ in the legislation appears to indicate a deliberate exclusion of any overseas partnership registration scheme.395

Not surprisingly, marriage has continued in all jurisdictions to be the overwhelmingly popular form of formalising a relationship. Rundle has presented some raw statistics as to patterns of usage of relationship registration that show both same-sex and oppositesex couples have applied for registration of their relationship.396 Rundle surmises it is likely that some same-sex couples will have chosen the state or territory alternative as their next best option to marriage, and that some couples, particularly heterosexual couples, will have chosen the alternative because they do not want to embrace the marriage option.397 In Australia and overseas, the utility of relationship registration is beginning to be questioned, as more jurisdictions permit same-sex marriage. Further, for some people the legislative provision for relationship registration and civil partnerships (see 5.119) as an alternative to same-sex marriage perpetuates marriage inequality.398

Close and caring personal relationships 5.118 In the Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria, the statutory rights to seek orders with respect to the property of the parties to the relationship and maintenance have been extended to partners who fall outside the traditional ‘cohabitation model’ of marriage and de facto relationships, but who have nonetheless enjoyed a close and caring [page 303] personal relationship.399 For example, the relevant provision in New South Wales states: (1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).400

While the potential for such a caring relationship to exist between extended family members, or even close platonic friends, is obvious, there is little evidence that people are choosing to register these relationships.401 It is clear from the relevant definitions that no such ‘relationship’ arises where a payment is made for domestic care and personal support. That qualification provides a convenient mechanism for a party who wants to ensure that no statutory rights arise. Moreover, additional protection may be provided by the use of a domestic relationship agreement, discussed in Chapter 15.

Civil partnership laws 5.119 As explained in Chapter 1, civil partnerships have been equated, legally, with opposite-sex de facto relationships. In Australia, opposite-sex couples can choose to marry: same-sex couples cannot. This fundamental difference in the legal status of relationships and the ability to marry has attracted considerable criticism, discussed at 1.60–1.63. Despite the development in a number of overseas [page 304]

jurisdictions of ‘civil unions’ that coexist with marriage, attempts to achieve this in Australia have failed. The Australian Capital Territory passed the Civil Unions Act 2006 on 11 May 2006. This legislation was subsequently ‘disallowed’ by the Governor-General (on advice from the Howard Government) on 13 June 2006. The disallowance was despite some last-minute changes to the legislation (addressing some of the concerns that had been raised by the Federal Attorney-General) that included providing that a ‘civil union is different to a marriage but is to be treated for all purposes under territory law in the same way as marriage’ (s 5(2)) and creating a separate register of celebrants in Pt III of the Act. After further setbacks, the Australian Capital Territory Government introduced a revised Bill that provided for civil partnerships with an ‘administrative ceremony’, rather than a legal ceremony.402 The revised Bill, finally enacted as the Civil Partnership Act 2008 (ACT), creates a system of relationship registration, discussed at 5.116–5.117. Under this Act, a ‘civil partnership’ is a particular type of domestic partnership which, when entered into, is automatically regarded as being a domestic partnership for the purposes of Australian Capital Territory law, and, in particular, the Domestic Relationships Act 1994 (ACT). The couple may be opposite-gender or same-gender. A person may enter into a civil partnership only if: (a) the person is not married or in a civil partnership; and (b) the person does not have any of the following relationships (a prohibited relationship) with the person’s proposed civil partner: (i) lineal ancestor; (ii) lineal descendent; (iii) sister; (iv) half-sister; (v) brother; (vi) half-brother; and (c) the person or the person’s proposed civil partner, or both of them, live in the

ACT.403

In 2011, the Queensland Parliament passed the Civil Partnerships Act 2011404 to enable people to enter into civil partnerships in terms similar to the Australian Capital Territory legislation. The Queensland Parliament subsequently departed from this model when it amended the legislation on 22 June 2012, changing the name of the Act to the Relationships Act 2011 and removing [page 305] the option of a state-sanctioned declaration ceremony.405 The Relationships Act now provides for legal recognition of oppositesex and same-sex couple relationships in Queensland by registration: see 5.116. Couples who had registered a civil partnership under the Civil Partnerships Act 2011 (Qld) will continue to have legal recognition of their relationship through the provisions of the Relationships Act as a registered relationship.406 These amendments were introduced in response to concerns that the declaration ceremony was too similar to marriage, while at the same time recognising the benefits to unmarried couples of being able to register their relationship. For the purposes of the FLA, a person in a registered relationship will be recognised as being in a de facto relationship in accordance with the provisions set out in the latter part of this chapter.

1.

J Eekelaar, Family Law and Social Policy, 2nd ed, Weidenfeld & Nicolson, London, 1984, p 3.

2.

See, for example, I Stone, The Family, Sex and Marriage in England 1500–1800, Weidenfeld & Nicolson, London, 1977; E Shorter, The Makings of the Modern Family, Collins, London, 1976; P Aries, Centuries of Childhood, Jonathan Cape, New York, 1962; J Eekelaar, Family Law and Social Policy, 2nd ed, Weidenfeld & Nicolson, London, 1984, p 3; M Freeman, The Rights and Wrongs of Children, Frances Pinter, London, 1983, Ch 1; M Garrison and ES Scott (eds), Marriage at the Crossroads: Law, Policy, and the Brave New World of Twenty-First-Century Families, Cambridge University Press, New York, 2012. O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121.

3. 4. 5.

N Witzleb, ‘Marriage as the “Last Frontier”? Same-Sex Relationship Recognition in Australia’ (2011) 25(2) International Journal of Law, Policy and the Family 135. See O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121 at 122.

6. 7.

As amended by the Marriage Amendment Act 2004 (Cth). P Ruddock, ‘Government Defends Marriage’, Media Release 080/2004, AttorneyGeneral’s Department, Canberra, 27 May 2004.

8.

This includes civil celebrants who were appointed as from 1973: see Marriage Amendment Act 1973 (Cth). (1866) LR 1 P & D 130; [1861–73] All ER Rep 175.

9. 10.

11.

A marriage contracted in a jurisdiction that allows polygamous marriage is an invalid marriage even if the parties were only married to one person at the time — the potential for polygamy is sufficient for the marriage to be invalid. (1866) LR 1 P & D 130 at 133: ‘I conceive that marriage, as understood in Christendom, may … be defined as the voluntary union for life of one man and one woman to the exclusion of all others.’

12. 13.

Marriage Act ss 23(1)(a), 23B(1)(a). P Nygh, Guide to the Family Law Act, 4th ed, Butterworths, Sydney, 1986, p 20.

14. 15.

Recognition rules are discussed in a later section of this chapter: see 5.61ff. See, for example, Risk v Risk [1951] P 50; Nachimson v Nachimson [1930] P 217; Sowa v Sowa [1961] P 70.

16. 17.

See Khan v Khan [1963] VR 203 (a potentially polygamous union). Hashmi v Hashmi [1972] Fam 36; Coleman v Shang [1961] AC 481; Re Sehota [1978] 3 All ER 385; Haque v Haque (No 1) (1962) 108 CLR 230.

18. 19.

By the Matrimonial Causes Act 1965 (Cth) s 3, which inserted s 6A into the Matrimonial Causes Act 1959 (Cth). Matrimonial Causes Act 1973 (UK) s 47.

20. 21.

Family Proceedings Act 1980 (NZ) s 2 (see ‘definition of marriage’). But there are some examples, such as qualification as adoptive parents: Adoption

Act 1984 (Vic) s 11(l)(b). 22. 23. 24.

25. 26. 27. 28.

29.

ALRC, Report No 31, The Recognition of Aboriginal Customary Laws, AGPS, Canberra, 1986, Chs 12–14. Ibid, [245]. Law Reform Commission of Western Australia, Aboriginal Customary Laws, Project 94, Discussion Paper, December 2005, p 3. See also A Nicholson, ‘Indigenous Customary Law and Australian Family Law’ (1995) 42 Family Matters 24. Law Reform Commission of Western Australia, Aboriginal Customary Laws, Project 94, Discussion Paper, December 2005, p 3. Northern Territory Law Reform Committee, Background Paper 3: The Legal Recognition of Aboriginal Customary Law, 2003, p 16. See A Nicholson, ‘Indigenous Customary Law and Australian Family Law’ (1995) 42 Family Matters 24 at 25. There are other respects in which this is true also: see Law Reform Commission of Western Australia, Aboriginal Customary Laws, Project 94, Discussion Paper, December 2005, p 3. In addition, civil unions between same-sex couples are now able to be registered in the UK: Civil Partnership Act 2004 (UK) (commenced 5 November 2005).

30. 31.

[2013] HCA 55; (2013) 250 CLR 441; (2013) 304 ALR 204. Ibid.

32.

Commonwealth Attorney-General’s Department, Submission, 1 August 1996, Senate Committee of Legal and Constitutional Affairs, [17]. (1993) 118 ALR 467.

33. 34. 35.

Commonwealth Attorney-General’s Department, Submission, 1 August 1996, Senate Committee of Legal and Constitutional Affairs, [25]. (2001) 28 Fam LR 158; FLC ¶93-087. For a discussion, see M Otlowski, ‘What is the Harm in it Anyway? Re Kevin and the Recognition of Transsexual Marriage’ (2002) 16 Australian Journal of Family Law 146.

36. 37.

[1971] P 83; [1970] 2 All ER 33; [1970] 2 WLR 1306. Attorney-General (Commonwealth) v Kevin & Jennifer (2003) 30 Fam LR 1; FLC ¶93127.

38. 39.

Ibid at [374]–[375]. Ibid at [379].

40. 41.

[2002] 1 All ER 311; (2001) 2 Fam LR 1048. Attorney-General (Commonwealth) v Kevin & Jennifer (2003) 30 Fam LR 1 at [195], [280].

42. 43.

(2011) 281 ALR 694; (2011) 85 ALJR 1233; (2011) 46 Fam LR 1; (2011) 244 CLR 390. (2011) 46 Fam LR 1 at 9.

44. 45.

[1930] P 217. (1980) 5 Fam LR 831 at 837.

46.

M Finer and O McGregor, Report of the Committee on One-Parent Families, HMSO,

47. 48.

London, 1974, Cmnd 5629. Ibid, vol 1, p 23. [1963] WAR 145.

49. 50.

(1866) LR 1 CP 331. For a comment, see ‘Current Topics: The Marriage Amendment Bill 1976’ (1976) 50 Australian Law Journal 325 at 327.

51. 52.

That is, the ordinary law of gifts, enforceable in state and territory courts. See Cohen v Sellar [1926] 1 KB 536; Jacobs v Davis [1917] 2 KB 532.

53. 54.

Davies v Messner (1975) 12 SASR 333. S Cretney, Principles of Family Law, 4th ed, Sweet & Maxwell, London, 1984, p 690; cf N Lowe and G Douglas, Bromley’s Family Law, 9th ed, Butterworths, London, 1998, pp 26–7.

55. 56.

Bunting v Lepingwell (1585) 4 Co Rep 29; 76 ER 950. See H Finlay, ‘Jactitation and Restitution of Conjugal Rights: An Epitaph’ (1974) 11 University of Western Australia Law Review 264 at 265.

57 58.

26 Geo II, c 33. Lord Hardwicke’s Act s 18; cf Marriage and Registration Act 1856 (UK), 19 and 20 Vict, c 119.

59. 60.

See D Walker, Principles of Scottish Private Law, 4th ed, Clarendon Press, Oxford/New York, 1988, p 214. 4 Geo IV, c 76.

61. 62.

See note 42, vol 11, App 5, pp 84–91. Marriage Act Pt V Divs 3–4 ss 71–88.

63. 64.

Marriage Act Pt V Divs 1–2 (repealed by the Marriage Amendment Act 2002 (Cth)). Marriage Act Pt VA.

65. 66.

Marriage Act ss 23 and 23B. [2015] FamCA 873 at [20].

67. 68.

Marriage Act s 22. Ibid s 10.

69. 70.

Ibid s 23. Ibid ss 23B(1), 88C(1).

71. 72.

Marriage Act s 42(1)(b)(i), (c). Ibid ss 23(1)(a), 23B(1)(a).

73. 74.

Ibid s 94(2). For an illustration of these principles, see Marriage of Schmidt (1976) 1 Fam LR 11,355; FLC ¶90-052.

75. 76.

Marriage Act ss 23(1)(b), 23B(1)(b). Schedule 2.

77.

See H Finlay, ‘Farewell to Affinity and the Calculus of Kinship’ (1975) 5 University of Tasmania Law Review 16.

78.

Marriage Act ss 23A, 23B.

79. 80.

A Dickey, Family Law, 6th ed, Lawbook Co, Sydney, 2007, p 135. By the Sex Discrimination Amendment Act 1991 (Cth).

81. 82.

See K v Cullen (1994) 18 Fam LR 636. For a discussion, see H Finlay, ‘Judicial Discretion in Family and Other Litigation’ (1976) 2 Monash University Law Review 221.

83. 84.

[1970] 15 FLR 420. Ibid at 421.

85. 86.

[1973] VR 533; (1973) 21 FLR 450. Martin v Martin [1941] N I 1 at 14; Re Z [1970] 15 FLR 420 at 421.

87. 88.

[1970] 15 FLR 420 at 421. (1997) 21 Fam LR 479; FLC ¶92-725.

89. 90.

(1997) 21 Fam LR 479 at 485. Ibid.

91. 92.

Re K (an infant) [1964] ALR 363 at 364. [1970] 15 FLR 420.

93. 94.

Ibid at 422. See Re H (an infant) [1964–65] NSWR 2004; Re W [1968] QWN 45.

95. 96.

(1997) 21 Fam LR 479 at 484. Ibid.

97. 98.

(1968) 11 FLR 326. Referred to by J Neville Turner in ‘Marriage of Minors’ (1968) 8 University of Western Australia Law Review 319.

99. (1994) 18 Fam LR 636. 100. [1970] 15 FLR 420. 101. Ibid at 644. 102. Marriage Act s 16. 103. Ibid s 19(1). 104. (1994) 18 Fam LR 636 at 645. 105. (1997) 21 Fam LR 479; FLC ¶92-725. 106. Marriage Act s 12(3). 107. Ibid s 12(5). 108. For a judicial comment, see Re B (1983) 9 Fam LR 40; FLC ¶91-332 per Fogarty J. 109. Marriage Act s 13(1). 110. Ibid s 48(2)(f). 111. Ibid s 95(2). 112. Ibid s 95(4). 113. Ibid s 15. 114. Ibid s 5(1).

115. Ibid s 15(1). 116. Ibid s 15(4). 117. Introduced by the Marriage Amendment Act 1976 (Cth) and modified to include federal magistrates by the Marriage Amendment Act 2002 (Cth). 118. See Re an Infant (1963) 6 FLR 12; Re V (1964) 6 FLR 266; Re an Infant [1970] WAR 139; Re B (1972) 20 FLR 178. 119. Marriage Act s 16(2), (5)–(6). 120. Marriage Act s 18. 121. For discussion of the case law concerning the exercise of the power of a judge to grant consent, see L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [4.51]–[4.52]. 122. Marriage Act s 41. 123. Ibid s 5(1). 124. Ibid s 27. 125. Ibid s 30. 126. Ibid s 29. 127. Ibid s 31. 128. Ibid s 39A. 129. Ibid s 39B. 130. Ibid s 39C. 131. Ibid s 39C(1)(a)–(c). 132. Ibid s 39C(2)(a)–(h). 133. See Marriage Regulations 1963 (Cth) Sch 1A. 134. Marriage Act Pt IV Div 1 Subdiv B s 39(1). 135. Marriage Act s 39(2). 136. Ibid s 41. 137. (1998) 23 Fam LR 175; FLC ¶92-808. 138. (1998) 23 Fam LR 175 at 194 per Fogarty J; at 207 per Baker J; at 219 per Lindenmayer J. 139. Marriage Act s 42(1)(a). 140. Ibid s 42(1)(b). 141. Ibid s 42(1)(c). 142. Ibid s 42(10). 143. Ibid s 43. 144. Ibid s 44. 145. Ibid s 48(2)(e). Mears v Mears (2012) FLC ¶93-503 was a case where one of the witnesses to a marriage was under the age of 18 and the marriage was declared valid. 146. (1866) LR 1 P & D 130; [1861–73] All ER Rep 175.

147. Ibid s 45(1). 148. Ibid s 45(2). 149. Marriage Act s 50 and Marriage Regulations 1963 (Cth) reg 42. 150. Marriage Regulations 1963 (Cth) reg 42. 151. Marriage Act s 54. 152. Ibid s 53. 153. Ibid s 55(a). 154. Ibid s 55(b). 155. Ibid s 58. 156. Ibid s 57. 157. Ibid s 71. 158. Ibid s 72. 159. Ibid s 88B(3). 160. Apart from the limited category of ‘Australian’ Defence Force marriages celebrated overseas: see 5.59. 161. Marriage Act s 88C(1). 162. Articles 11 and 14. 163. [1930] AC 79. 164. Ibid at 83. 165. That is, where someone stands in for one of the parties; thus one party is not physically present at the marriage ceremony. 166. Apt v Apt [1947] 2 All ER 677; Re B (1983) 9 Fam LR 40; FLC ¶91-332. 167. (1983) 9 Fam LR 40; FLC ¶91-332. 168. (1983) 9 Fam LR 40 at 41–2. 169. (1983) 8 Fam LR 793; FLC ¶91-306. 170. (1983) 8 Fam LR 793 at 804. 171. Marriage Act s 88C(2). 172. Ibid s 88D(2)(a). 173. Ibid s 11. 174. (1983) 9 Fam LR 40; FLC ¶91-332. 175. [1951] P 482. 176. Marriage Act ss 23(2) and 23B(2). 177. Ibid s 88D(4) and (5). 178. FLA s 104(3), (5). 179. These are discussed in more detail by M Neave, ‘The New Rules on Recognition of Foreign Marriages — Insomnia for Lawyers’ (1990) 4 Australian Journal of Family Law 190. 180. For a discussion of this issue, see P Nygh, ‘The Consequences for Australia of the New Netherlands Law Permitting Same Gender Marriages’ (2002) 16 Australian

Journal of Family Law 139. 181. See Marriage Amendment Act 2004 (Cth) s 3 and Sch 1. 182. Ibid. 183. P Nygh, ‘The Consequences for Australia of the New Netherlands Law Permitting Same Gender Marriages’ (2002) 16 Australian Journal of Family Law 139 at 143. 184. R Croome, From This Day Forward: Marriage Equality in Australia, Walleah Press, North Hobart, 2015, p 127. 185. See L Vasek, ‘ALP Opens Way to Gay Australians Marrying Overseas’, The Australian, 5 December 2011, www.theaustralian.com.au/archive/national-affairs/alp-opens-way-to-gay-australians-marrying-overseas/story-fnba0rxe-1226214013632 (accessed 12 January 2016). 186. The Consular Marriage and Marriages Under Foreign Law Order 2014 (UK) (www.legislation.gov.uk/ukdsi/2014/9780111108758/contents, (accessed 12 January 2016)), which came into effect on 3 June 2014, allows same-sex marriages to occur in British consulates in 24 countries, including Australia: see Craddock Murray Neumann, ‘Same Sex Marriage is Now Legal in British Consulates in Australia’, 30 June 2014, www.craddock.com.au/LegalNews/74645-Same-sex-marriage-is-now-legal-in-British-Consulates-in-Australia.aspx (accessed 12 January 2016). 187. See H Davidson, ‘First Gay Marriage in a UK Consulate Won’t Be Recognised in Australia’, The Guardian, 27 June 2014, www.theguardian.com/society/2014/jun/27/first-gay-marriage-in-a-uk-consulate-wont-be-recognised-in-australia (accessed 12 January 2016). 188. However, for a case where it was shown that clear evidence was needed to raise the presumption, see Lester v Lester (2007) 36 Fam LR 488. 189. See, for example, Axon v Axon (1937) 59 CLR 395; Jacombe v Jacombe (1961) 105 CLR 355; Fox v Public Trustee (1983) 9 Fam LR 275; Kirby & Watson (1977) 3 Fam LR 11,318; FLC ¶90-261; Banh & Banh (1981) 6 Fam LR 643; FLC ¶91-010; Barriga & Barriga (No 2) (1981) 7 Fam LR 909; FLC ¶91-088. 190. (1937) 59 CLR 395 at 403–4. 191. Ibid at 403–4. 192. (1977) 3 Fam LR 11,318; FLC ¶90-261. 193. (1977) 3 Fam LR 11,318 at 11,322. 194. (2002) 30 Fam LR 581; (2003) FLC ¶93-134. 195. [2009] FamCA 1360. 196. Marriage Act s 113(1)(a). 197. Ibid s 99(6) (penalty $500 or six months’ imprisonment). 198. Ibid s 113(5). 199. Ibid s 113(6). 200. Ibid s 113(7). 201. Ibid s 113(2). 202. Ibid s 113(3). 203. Ibid s 113(6).

204. Zau v Huang [2015] FamCA 873. 205. (1991) 14 Fam LR 883; FLC ¶92-245. 206. Now a divorce order: see 6.55. 207. (1991) 14 Fam LR 883 at 887. 208. [2015] FamCA 873. 209. Marriage Act s 95. 210. Ibid s 48(2). 211. Ibid s 48. (See s 83 in relation to marriages performed overseas by Australian defence force chaplains.) 212. Marriage Act s 101 (penalty: $500 or six months’ imprisonment). 213. Ibid s 103 (penalty: $500 or six months’ imprisonment). 214. Ibid ss 48(3), 83(2). See, for example, Oltman v Harper (No 2) [2009] FamCA 1360. 215. Marriage Act s 91. 216. [2010] FamCA 1053. 217. See also Hiu v Ling [2010] FamCA 743 (evidence of bigamy). 218. (1962) 107 CLR 529. 219. Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth), The Family Law Act 1975: Aspects of its Operation and Interpretation, AGPS, Canberra, 1992, [10.42]–[10.43]. 220. Ibid, [10.56]. See also Australian Law Reform Commission (ALRC), Report No 57, Multiculturalism and the Law, AGPS, Canberra, 1992, [5.25] (and submissions in fn 49). ALRC reports may be accessed via the ALRC website: www.alrc.gov.au (accessed 7 January 2016). 221. Australian Law Reform Commission (ALRC), Discussion Paper 54, Equality Before the Law, AGPS, Canberra, 1993, [8.12]–[8.19], [8.44]–[8.53]; ALRC, Report No 67, Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, [2.25], [2.36]–[2.37]. 222. Australian Law Reform Commission (ALRC), Report No 69, Part II: Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, Ch 3. 223. Human Rights and Equal Opportunity Commission, Final Report 2007, Same-Sex: Same Entitlements — National Inquiry into Discrimination against People in SameSex Relationships: Financial and Work-Related Entitlements and Benefits, Human Rights and Equal Opportunity Commission, 2007, www.humanrights.gov.au/sites/default/files/content/human_rights/samesex/report/pdf/SSSE_Report.pdf (accessed 7 January 2016). 224. Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 (Cth). See also Report of the Senate Standing Committee on Legal and Constitutional Affairs, Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Bill 2008, October, 2008, p 14, www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Completed_inquiries/2008-10 (accessed 7 January 2016). 225. Ibid.

226. R Chisholm, O Jessep and S O’Ryan, ‘De Facto Property Decisions in NSW: Emerging Patterns and Policies’ (1991) 5 Australian Journal of Family Law 293 at 312–13. 227. R Bailey-Harris, ‘Financial Rights in Relationships Outside Marriage: A Decade of Reforms in Australia’ (1995) 9 International Journal of Law and the Family 233 at 236; R Bailey-Harris, ‘Law and the Unmarried Couple: Liberation or Oppression?’ (1996) 8 Child and Family Law Quarterly 137. See also Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth), The Family Law Act 1975: Aspects of its Operation and Interpretation, AGPS, Canberra, 1992, [10.50]–[10.51]; R Chisholm, O Jessep and S O’Ryan, ‘De Facto Property Decisions in NSW: Emerging Patterns and Policies’ (1991) 5 Australian Journal of Family Law 241 at 264, 266. 228. New South Wales Law Reform Commission (NSWLRC), De Facto Relationships, Report 36, Sydney, 1983, www.lawreform.justice.nsw.gov.au/Documents/report_36.pdf (accessed 7 January 2016). 229. Ibid, [5.30]–[5.35], [5.64]. 230. Ibid, [5.63]–[5.66]. 231. Ibid, [5.67]. 232. New South Wales Law Reform Commission (NSWLRC), Relationships, Report 113, Sydney, 2006, Recommendations 27–30, 35–38, www.lawreform.justice.nsw.gov.au/Documents/report_113.pdf (accessed 7 January 2016). 233. J McGinty (Attorney-General), Introduction and First Reading Speech, Western Australian Legislative Assembly, 29 August 2001. 234. R McClelland (Attorney-General), First and Second Reading Speech, Commonwealth of Australia Parliamentary Debates, House of Representatives, Canberra, 25 June 2008, pp 5823–5, available at www.aph.gov.au (accessed 7 January 2016). 235. Explanatory Memorandum, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth), House of Representatives, 2008, p 1, available at www.comlaw.gov.au (accessed 7 January 2016). 236. Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) s 3 and Sch 1 Pt 1 cl 3; FLA s 4(1). 237. A Harland, ‘A New Era in De Facto Relationships Law: Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth)’ (2008) 13(4) Collaborative Family Law 195 at 196. 238. Part 5A. The Western Australia provisions have applied to both opposite-sex and same-sex couples since 1 December 2002. 239. See J Millbank, ‘De Facto Relationships, Same-sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 1 at 9–11; D Kovacs, ‘A Federal Law of De Facto Property Rights: The Dream and the Reality’ (2009) 23 Australian Journal of Family Law 104; J Behrens, ‘“De Facto Relationship”? Some Early Case Law under the Family Law Act’ (2010) 24 Australian Journal of Family Law 350; A Dickey, ‘Further Consideration of a De Facto Relationship’ (2012) 86 Australian Law Journal 163. 240. Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008

s 2. Transition arrangements allow eligible couples to ‘opt in’ to the new regime: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 Sch 1 s 86A. For parties to a de facto relationship in South Australia, the commencement date is 1 July 2010: see Commonwealth Powers (De Facto Relationships Act) 2009 (SA) s 2. 241. [2011] FamCA 436. 242. Ibid at [12]. 243. Fenton v Marvel (2013) FLC ¶93-550; [2013] FamCAFC 132. 244. Norton v Locke (2013) FLC ¶93-567; [2013] FamCAFC 202. The power to grant an injunction pursuant to s 114(3) or s 90SS of the Act is subject to the same limitation: ibid. 245. Ibid at [42]. 246. Ibid at [43]–[59]. 247. Klintock v Ferder (2010) 43 Fam LR 135; [2010] FamCA 162. 248. See Keaton v Aldridge (2009) 223 FLR 158 at [30] per Pascoe CFM; [2009] FMCA 92. It must also be proved that the de facto partner consented to the carrying out of the procedure: s 60H(1)(b). 249. See, for example, Teh v Muir [2014] FamCA 483 at [12]. 250. See, for example, Morley v Henshall [2014] FCCA 1993 at [39]. 251. A Dickey, ‘Two Problems Concerning De Facto Relationship Proceedings’ (2009) 83 Australian Law Journal 588. For a further difficulty that can arise for couples whose relationship comes within the s 4AA(1) definition without them being aware of this, see A Dickey ‘A Lacuna in the Provisions for Financial Agreements Between De Facto Partners’ (2014) 88 Australian Law Journal 841. 252. Section 4AA(6) defines, for the purposes of subs (1), when two persons are related by family. 253. Domestic Relationships Act 1994 (ACT) s 3; Property (Relationships) Act 1984 (NSW) ss 4–5 (as amended by the Property (Relationships) Legislation Amendment Act 1999(NSW)); De Facto Relationships Act 1991 (NT) s 3A (as amended by the Law Reform (Gender Sexuality and De Facto Relationships) Act 2003 (NT)); Property Law Act 1974 (Qld) ss 260–261 (as amended by the Property Law Amendment Act 1999 (Qld)); Acts Interpretation Act 1954 (Qld) s 32DA(1); Domestic Partners Property Act 1996 (SA) s 3 (as amended by the Statutes Amendment (Domestic Partners) Act 2006 (SA)); Relationships Act 2003 (Tas) ss 4– 5; Relationships Act 2008 (Vic) s 39; Interpretation Act 1984 (WA) s 13A(1). 254. FLA s 4AA(2). See also Property (Relationships) Act 1984 (NSW) s 4(2); De Facto Relationships Act 1991 (NT) s 3A(2); Acts Interpretation Act 1954 (Qld) s 32DA(2); Relationships Act 2003 (Tas) s 4(3); Relationships Act 2008 (Vic) s 35(2); Interpretation Act 1984 (WA) s 13A(2). 255. (1986) 11 Fam LR 214; DFC ¶95-030. 256. (1986) 11 Fam LR 214 at 227. 257. Ibid. See also Powell J’s decisions in Roy v Sturgeon (1986) 11 Fam LR 271 at 274 and Jones v Grech (2001) 27 Fam LR 711 at 716; also applied in Zegarac v Tomasevic

(2003) DFC ¶93-278 at 77,797 per Bongiorno J. 258. (2010) 238 FLR 210 at 214. 259. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]. 260. See, for example, MW v Director-General, Dept of Community Services (2008) 244 ALR 205; Truman v Clifton [2010] FCWA 91. 261. See, for example, Baker v Landon (2010) 238 FLR 210 at 218. 262. Vine v Carey [2009] FMCAfam 1017; Hamblin v Dahl (2010) 239 FLR 111; [2010] FMCAfam 514. See also L v C [2005] FCWA 23 at [24]–[27] and Truman v Clifton [2010] FCWA 91 at [352] for application of this principle of statutory interpretation to the equivalent provisions that apply in Western Australia. 263. [2012] FamCA 210 at [20]. 264. (2011) 46 Fam LR 229 at [123]. 265. [2011] FamCAFC 222. 266. (2011) 45 Fam LR 460 at 467. 267. Ibid at 467. 268. S v B (No 2) (2004) 32 Fam LR 429 per Dutney J at [49]; Barry v Dalrymple [2010] FamCA 1271 per Coleman, at [9]; Nghiem v Truong [2012] FamCA 210 per Cronin J. 269. (2012) 48 Fam LR 150. 270. (2012) 48 Fam LR 150 at 152. 271. J Behrens, ‘“De Facto Relationship”? Some Early Case Law under the Family Law Act’ (2010) 24 Australian Journal of Family Law 350 at 360. 272. For example, Dakin v Sansbury [2010] FMCAfam 628 at [163]. 273. For example, Nghiem v Truong [2012] FamCA 210. 274. (2010) 238 FLR 210. 275. Ibid at 216. 276. For example, Moby v Schulter (2010) FLC ¶93-447; Jonah v White (2011) 45 Fam LR 460 at 467. 277. (2010) FLC ¶93-447. 278. Jonah v White (2011) 45 Fam LR 460; Jonah v White (2012) 48 Fam LR 562 (Full Court). 279. (2010) FLC ¶93-447 at [167]. 280. Ibid at [140]. 281. Ibid at [167]. 282. For criticism of mutual commitment between the parties not being identified as an essential characteristic of a de facto relationship, see A Dickey, ‘Two Problems Concerning De Facto Relationship Proceedings’ (2009) 83 Australian Law Journal 588. 283. Moby v Schulter (2010) FLC ¶93-447 at [166]–[167]. 284. Ibid at 472, 472. 285. [2013] FamCA 347 at [35].

[2013] FamCA 783 at [8]. See also Savianne v Marriott [2014] FamCA 882 at [219]; 286. Spencer v Speight [2014] FamCA 436 at [111]. 287. (2012) 48 Fam LR 562. 288. Ibid at 568. 289. (2011) 45 Fam LR 460 at 471. 290. Sinclair v Whittaker (2013) FLC ¶93-551 at [94]; Cadman v Hallett (2014) FLC ¶93630 at [42]. 291. Sinclair v Whittaker (2013) FLC ¶93-551 at [65]; Delamarre v Asprey (2014) FLC ¶93616 at [39]. 292. C Conlan, ‘Love is Sharing: The Elastic Evolution of the De Facto Relationship in Australia and its Implications for What is Just and Equitable in Family Law Property Settlements’ (2014) 24(1) Australian Family Lawyer 1 at 2. 293. (2009) 223 FLR 158. 294. Ibid at 178. 295. (2010) 238 FLR 210. 296. See also Jonah v White (2011) 45 Fam LR 460 at 472 per Murphy J. 297. In Cadman v Hallett (2014) FLC ¶93-603 at 79,477, the entry into a sham marriage in the United States by the applicant for the purposes of obtaining the right to live permanently in that country was considered not to be necessarily inconsistent with an ongoing de facto relationship with the respondent. 298. Jonah v White (2011) 45 Fam LR 460; Jonah v White (2012) 48 Fam LR 562 (Full Court). 299. See, for example, J Millbank, ‘De Facto Relationships, Same-sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 1 at 4; O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121 at 139, who notes that state laws that provide for registration of relationships do not allow for registration of multiple relationships. 300. [2010] FCWA 91. 301. Ibid at [350]. 302. Ibid at [351]–[352]. 303. For a detailed discussion of this, see E Scheff, The Polyamorists Next Door: Inside Multiplepartner Relationships and Families, Rowman and Littlefield Publishers Inc, Lanham, 2014. 304. Baker v Landon (2010) 238 FLR 210 at 215 per Riethmuller FM. 305. D Kovacs, ‘A Federal Law of De Facto Property Rights: The Dream and the Reality’ (2009) 23 Australian Journal of Family Law 104 at 118. See also A Dickey, ‘Further Consideration of a De Facto Relationship’ (2012) 86 Australian Law Journal 163 at 164, who argues that the terms of the referral of power by a number of the states control the scope for the s 4AA(1) definition to include a relationship other than a ‘marriage-like’ relationship. 306. Dahl v Hamblin (2011) 46 Fam LR 229 at 238. See also Smyth v Pappas [2011] FamCA 434.

307. See, for example, Keaton v Aldridge (2009) 223 FLR 158; Barry v Dalrymple [2010] FamCA 1271; Smyth v Pappas [2011] FamCA 434. 308. Section 4AA(3). 309. (2010) 238 FLR 210 at 235. 310. [2011] FamCAFC 222. 311. Keaton v Aldridge (2009) 223 FLR 158 at 166. 312. Moby v Schulter (2010) FLC ¶93-447 at [168]; Baker v Landon (2010) 238 FLR 210 at 235. 313. Dahl v Hamblin (2011) 46 Fam LR 229 at 238; 254 FLR 49. See also Cole v Childs [2010] FMCAfam 631 at [26]. 314. [2011] FamCAFC 222. 315. Ibid at [57]. 316. [2011] FamCA 221. 317. [2011] FamCAFC 222 at [59]. It is assumed that the Full Court is using ‘cohabitation’ synonymously with ‘common residence’ here, rather than in the broader sense in which ‘cohabitation’ is used in some contexts to describe de facto or ‘marriage-like’ relationships. 318. Jonah v White (2012) 48 Fam LR 562 (Full Court); Sinclair v Whittaker (2013) FLC ¶93-551; Cadman v Hallett (2014) FLC ¶93-630. 319. Keaton v Aldridge (2009) 223 FLR 158; McMaster v Wyhler [2013] FamCA 989. 320. Ricci v Jones [2011] FamCAFC 222 at [57]. 321. [2011] FamCA 436 at [67]. 322. [2009] FMCAfam 1017. 323. Ibid at [38]. 324. [2015] FamCA 964. 325. Ibid at [23], [81]. 326. Ibid at [162]–[164]. 327. Ibid at [165]. 328. (2009) 223 FLR 158 at 170. 329. [2009] FMCAfam 1017. 330. [2011] FamCAFC 222. 331. For example, McMaster v Wyhler [2013] FamCA 989. 332. Taisha v Peng (2012) 48 Fam LR 150. 333. (2011) 45 Fam LR 460 at 471. 334. [2010] FamCA 1271. 335. Ibid at [247]–[248]. 336. (2014) FLC ¶93-614, at [71]. 337. Ting v Fingal [2013] FamCA 29. 338. Shelley v Markov [2012] FCWA 68.

339. Truman v Clifton [2010] FCWA 91. 340. [2010] FMCAfam 628. 341. [2011] FamCA 434. 342. (2010) FLC ¶93-447. 343. [2011] FamCAFC 222. 344. Delamarre v Asprey [2013] FamCA 214 at [75]. 345. [2012] FamCA 1050. 346. (2010) FLC ¶93-447 at [155]. 347. (2009) 223 FLR 158. 348. Ibid at 173. 349. (2010) 238 FLR 210. 350. Ibid at 235. Similarly, the exchange of rings has been taken into consideration by the court: Sinclair v Whittaker [2012] FamCA 1050; Ward v Trench [2013] FamCA 478. 351. See, for example, Vaughan v Bele [2011] FamCA 436. 352. (2009) 223 FLR 158 at 176. 353. Ibid at 177. 354. [2011] FamCAFC 222 at [14]. 355. [2011] FamCA 434. 356. Ibid at [115]. 357. [2012] FMCAfam 141. 358. (2009) 223 FLR 158 at 176. 359. (2010) 238 FLR 210 at 235. 360. [2011] FamCA 436. 361. Ibid at [69]. 362. (2011) 45 Fam LR 460. 363. [2010] FMCAfam 35. 364. Ibid at [37]. 365. J Behrens, ‘“De Facto Relationship”? Some Early Case Law under the Family Law Act’ (2010) 24 Australian Journal of Family Law 350 at 352. 366. For example, see Baker v Landon (2010) 238 FLR 210 at 218. For discussion of the complexities of the interaction between FLA proceedings, receipt of social security and the need to protect victims of family violence, see Behrens, ibid at 353–4, 358– 9. 367. Hamblin v Dahl (2010) 239 FLR 111; [2010] FMCAfam 514; L & C (2006) DFC ¶95327 (applying the provisions of the Family Court Act 1997 (WA)). 368. (2010) 239 FLR 111; [2010] FMCAfam 514. 369. (2010) 239 FLR 111 at 121. 370. (2011) 46 Fam LR 229; 254 FLR 49; [2011] FamCAFC 202. 371. (2010) FLC ¶93-447; [2010] FamCA 748.

372. (2010) FLC ¶93-447 at [168], [174]. 373. Hon Justice G Watts, ‘The De Facto Relationship Legislation’ (2009) 23 Australian Journal of Family Law 122 at 129. 374. FLA s 90RD(1); but note s 90RG (the ‘geographical requirement’). 375. FLA s 90RE(1). 376. FLA s 90RH(1). 377. FLA s 90RH(2). 378. Relationships Act 2003 (Tas) s 11. See also Pt 2 (‘Registration of Deed of Relationship’, ss 11–18) and Pt 3 (‘The Relationships Register’, ss 19–30). 379. Civil Partnerships Act 2008 (ACT) ss 7, 8, 19. 380. Relationships Act 2008 (Vic) Pt 2.2 (‘Registration of a Registrable Relationship’, ss 6– 16). See also Pt 2.3 (‘The Relationships Register’, ss 17–27). 381. Relationships Register Act 2010 (NSW) Pt 2. 382. Relationships Act 2011 (Qld). 383. For detailed discussion, see O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121. See also J Millbank, ‘De Facto Relationships, Same-sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 1 at 5–6. 384. New South Wales Law Reform Commission (NSWLRC), Relationships, Report 113, Sydney, 2006, Ch 4: ‘Legal Recognition of Domestic Relationships’, [4.5], available at www.lawlink.nsw.gov.au (accessed 20 June 2012). 385. O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121 at 151. 386. Ibid at 151–2. 387. New South Wales Law Reform Commission (NSWLRC), Relationships, Report 113, Sydney, 2006, Ch 4: ‘Legal Recognition of Domestic Relationships’, [4.6], available at www.lawlink.nsw.gov.au (accessed 20 June 2012). See also R Harding, ‘Dogs Are “Registered”, People Shouldn’t Be: Legal Consciousness and Lesbian and Gay Rights’ (2006) 15(4) Social & Legal Studies 511, available at http://sls.sagepub.com (accessed 20 June 2012). 388. See, for example, Keaton v Aldridge (2009) 223 FLR 158 at [176]. See also O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121 at 148. 389. Civil Partnerships Act 2008 (ACT). 390. Civil Partnerships Act 2011 (Qld). 391. Relationships Act 2003 (Tas). 392. Relationships Act 2008 (Vic). 393. J Millbank, ‘De Facto Relationships, Same-sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 1 at 5. 394. Family Law Regulations 1984 (Cth) regs 12BC, 15AB.

395. J Millbank, ‘De Facto Relationships, Same-sex and Surrogate Parents: Exploring the Scope and Effects of the 2008 Federal Relationship Reforms’ (2009) 23 Australian Journal of Family Law 1, p 5. 396. O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121 at 145. 397. Ibid at 146. 398. R Croome, From This Day Forward: Marriage Equality in Australia, Walleah Press, North Hobart, 2015, p 91. 399. Domestic Relationships Act 1994 (ACT) s 3; Property (Relationships) Act 1984 (NSW) s 5 (note: a ‘de facto relationship’ is also a ‘domestic relationship’); Domestic Partners Property Act 1996 (SA) s 3(1); Relationships Act 2003 (Tas) ss 5–6 (referred to as a ‘caring relationship’). In Victoria, the Relationships Act 2008 has been amended (as from 1 December 2009) to provide for the adjustment of property interests between caring partners who are in, or have been in, a registered caring relationship: see Relationships Amendment (Caring Relationships) Act 2009 (Vic). 400. Property (Relationships) Act 1984 (NSW) s 5. 401. For example, see O Rundle, ‘An Examination of Relationship Registration Schemes in Australia’ (2011) 25 Australian Journal of Family Law 121 at 146, who reported that there were only four registered caring relationships in Australia at that time, all in Tasmania. 402. P Maley and S Ryan, ‘ACT Made to Axe Gay Unions’, The Australian, 5 May 2008, available at www.theaustralian.news.com.au (accessed 12 April 2016). 403. Civil Partnership Act 2008 (ACT) s 6. 404. Royal assent was granted on 6 December 2011. 405. Civil Partnerships and Other Legislation Amendment Act 2012 (Qld). These provisions came into effect on 27 June 2012. 406. Relationships Act 2012 (Qld) Pt 6.

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6 NULLITY, DIVORCE AND TERMINATION OF DE FACTO RELATIONSHIPS ___________________________

Introduction 6.1 We have documented in Chapter 1 the transition in Australian family law from fault-based divorce to no-fault divorce. It is now a cornerstone of Australian family law that divorce should be accessible without an often harrowing, and arguably futile, inquiry into fault. In 1976, when the Family Law Act 1975 (Cth) (FLA) introduced the single ground for divorce — irretrievable breakdown of marriage — there was a sharp spike in the number of divorces. The next three years saw a steady decline in that number and since that time the proportion of the population divorcing has more or less stabilised, though at a higher level than before the new ground for divorce.1 However, as the rate of marriage has slowed, this means the rate of divorce has increased. Roughly a third of all marriages now end in divorce.2 6.2 The idea of no-fault divorce was controversial in 1975 and there remain critics who argue that divorce on demand should be reversed, largely because of the perceived benefits that marriage

can bring to children.3 Despite increasing rates of cohabitation outside of marriage, many young Australians still aspire to marriage. It is difficult to predict whether this would continue to the same extent if it became difficult to dissolve an unhappy marriage. While limiting divorce may appear to be an easy way to help children, the question is whether this is the best way of addressing problems faced by children in modern Australian families. As it happens, although the Federal Government has engaged in significant family law reforms in recent years, many of them aimed at improving the situation of children, it has not entertained the possibility of changing the law on divorce. [page 307] 6.3 In addition to divorce, this chapter deals with void marriages, nullity and declarations as to the validity of marriage and divorce. This chapter also considers what constitutes breakdown and termination of a de facto relationship. The definition and significance of a de facto relationship for the purposes of the FLA are considered in Chapter 5. Unlike marriage and divorce, there is no formality required for parties to enter into and exit a de facto relationship. It is a question of fact in each case as to the formation of a de facto relationship, its duration and whether the relationship has ended. The jurisdictional requirements in Pt VIIIAB of the Act for de facto financial proceedings relating to a ‘de facto matrimonial cause’ (defined in s 4(1) of the FLA) are set out in Chapters 10 (alteration of de facto property interests) and 12 (maintenance). It is necessary for the application of these provisions to ascertain first whether and when a de facto relationship has broken down.

Jurisdiction — divorce and nullity 6.4

The FLA refers to the various judicial processes that can be

heard in the Family Court of Australia — including divorce, nullity and declarations of validity — as ‘matrimonial causes’: see s 4(1).4 Due to their historical origins,5 it is usual to distinguish between ‘principal relief and’ ancillary relief in relation to matrimonial causes. Divorce, nullity and declarations of validity are the only categories of principal relief still remaining after the introduction of the FLA.6 The first of these is dealt with in ss 48–50 of the FLA; the second in ss 51 and 52. The power to make declarations generally is found in s 113, and this includes declarations of validity, or invalidity, of a marriage or a divorce.7 6.5 It is s 39(1) of the FLA that gives the Family Court of Australia jurisdiction in respect of matrimonial causes and, by virtue of s 41(3), that jurisdiction is extended to the only state family court, the Family Court of Western Australia. The Supreme Court of the Northern Territory is the only state or territory Supreme Court still exercising jurisdiction under the FLA,8 and it has the same jurisdiction in respect of matrimonial causes as the Family Court.9 While the FLA permits [page 308] state and territory courts of summary jurisdiction to hear undefended divorces,10 it also envisages this may be limited by regulation.11 As a result, only three such courts currently exercise this jurisdiction.12 Finally, the Federal Circuit Court13 has jurisdiction to hear matrimonial causes excepting nullity and declarations of validity.14 Thus, the Family Court of Australia, the Family Court of Western Australia and the Supreme Court of the Northern Territory can hear any divorce, nullity or declaration matter, the Federal Circuit Court may hear divorce applications, and a few courts of summary jurisdiction can hear undefended divorces.15

6.6 Section 39(3) and (4) of the FLA specify the jurisdictional nexus requirements for applicants in respect of matrimonial causes. For divorce applications, on the date of filing, one of the parties must be an Australian citizen or domiciled in Australia or have been ordinarily resident in Australia for one year. For declarations of validity and nullity (and most other matrimonial causes), one party need only be an Australian citizen, ordinarily resident in Australia or present in Australia when the application is filed or made. This means that, whereas for most purposes residence or mere presence in Australia has been substituted for domicile as a jurisdictional criterion, for divorce, a stronger connection with Australia is required.

Institution of proceedings 6.7 The Family Law Amendment Act 1983 (Cth) introduced an innovation in the institution of proceedings into the FLA (s 44(1A)), which enables joint applications for divorce or nullity to be made by both parties. The amendment was based on a recommendation of the 1980 Joint Select Committee on the Family Law Act.16 As outlined by the Attorney-General at the time of its introduction: ‘the making of joint applications would reduce the costs to the parties and would encourage negotiation and conciliation’. Correspondingly, para (a) of the definition of ‘matrimonial cause’ in s 4(1) of the FLA was amended to include proceedings ‘by the parties to a marriage’, in addition to the existing formulation of proceedings ‘between the parties to a marriage’. In such a case, both parties are the applicants. [page 309] 6.8 Another innovation introduced in 1983, despite some opposition, was s 98A which allows proceedings for divorce to be dealt with in the absence of both parties or their legal

representatives. It applies to an application instituted by one party to the marriage where: (a) the proceedings are undefended; (b) there are no children of the marriage who have not attained the age of 18 years;17 (c) the applicant has requested the court to determine the proceedings in the absence of the parties; and (d) the respondent has not requested the court not to determine the proceedings in the absence of the parties.18

A similar provision applies in the case of joint applications. In this case, the court may determine the proceedings in the absence of the parties even where there are children of the marriage under 18, unless the court is not satisfied that proper arrangements have been made for the care, welfare and development of those children.19 Where such an application has been made and is not opposed, the court may, in its discretion, proceed accordingly. In doing so, the judge still has to be satisfied that the ground in s 48 for divorce has been made out. This includes the requirement in s 48(3) that there is no likelihood of cohabitation being resumed. A disadvantage of this option for parties is that if they are not present in court, they cannot give evidence to overcome any lack of information in their application, thus risking adjournment if they have overlooked something. 6.9 A divorce order is always provisional in the first place (s 55 of the FLA) and only takes effect (ie becomes final) after a certain interval, currently one month: s 55(1).20 Before the enactment of the Matrimonial Causes Act 1959 (Cth), a separate application was always required for the order (then called a decree) to take effect. Over time this came to be regarded as something of a formality, but if for any reason neither of the parties applied, the decree remained provisional only and the parties remained legally married. Now, in the absence of any challenge to the provisional order, it automatically becomes final on the expiration of the onemonth period.

Under s 55(2)(b), the court has a discretionary power to reduce this period ‘if it is satisfied that there are special circumstances that justify its so doing’. [page 310] This is no mere formality, and where an application for a reduction of time is made, the court may have to be satisfied that the circumstances really are exceptional.21 Where, however, a divorce order is made final in error, or there are procedural irregularities, the court will set the final order aside:22 see 6.94–6.96. This system has never applied to nullity. The reason is simple. A void marriage is void ab initio; that is, it has never existed, whether a court says so or not. Once a marriage has been found to be void, therefore, a final decree of nullity is pronounced with immediate effect (the effect is the same if a declaration as to the invalidity of the marriage is made). Void and invalid marriages are discussed further at 6.105–6.108.

Nullity Introduction 6.10 As we saw at 1.7ff, divorce was a relative latecomer as a means of ending a marriage. Immediately preceding the enactment of the FLA, the older action of nullity applied to both void and voidable marriages (under the Matrimonial Causes Act 1959 (Cth)): see 1.42. In the case of void marriages, there never had been a marriage in the eyes of the law. In those circumstances, the order of the court was declaratory only. Voidable marriages, on the other hand, were prima facie valid, but liable to be set aside by

a court on the basis of one of a number of pre-existing conditions vitiating the marriage, such as inability of a party to consummate the marriage or pregnancy of the wife to another man.23 Unlike void marriages, voidable marriages could be set aside only on the application of a party, during the lifetime of both, and this had to be done within a certain time. 6.11 As the initiation of proceedings to set aside a voidable marriage presupposed a breakdown in the relationship of the parties, there was a strong analogy with divorce. Since the appropriate remedy for breakdown of marriage is divorce, and since the time required for divorce proceedings had been reduced to 12 months, this former category of nullity was not included in the FLA. In the context of the FLA, therefore, nullity of marriage now refers only to marriages void ab initio. This was confirmed in C & C.24 The husband in this case alleged that, despite six pregnancies and four children, he and his wife had not consummated their marriage and he applied for a decree of nullity. This would have been a ground [page 311] for declaring the marriage voidable under the Matrimonial Causes Act 1959 (Cth) and under the relevant legislation in the UK, where the parties had been married. The Full Court dismissed the husband’s appeal, confirming that lack of consummation would not render a marriage void under Australian or UK law, and that a decree of nullity is only available where a marriage is void. 6.12 An application for a decree of nullity is a matrimonial cause defined in s 4(1)(a) as a proceeding ‘between the parties to a marriage’, and can only be applied for by the parties to the marriage. The validity of a marriage may be challenged by people other than the parties themselves by seeking a declaration of

validity of marriage pursuant to s 113 of the Act:25 see 6.107–6.108. This application may be made even after the death of either or both of the parties to the marriage. In fact, cases have commonly been litigated for such purposes as determining succession to property or the legitimacy of descendants long after the death of the parties. 6.13 The grounds of nullity were originally contained in s 51 of the FLA. In 1976 they were transferred to the Marriage Act 1961 (Cth)26 (then ss 22 and 23), as it was considered more appropriate to cover void marriages in an Act dealing with marriage rather than in the FLA, which deals with divorce.27 Section 22 of the Marriage Act rendered these nullity provisions subject to the common law rules of private international law. However, to give effect to the Hague Convention on the Celebration and Recognition of the Validity of Marriage 1978, a new s 23B was introduced:28 see 5.27. The grounds of nullity are now set out in both ss 23 and 23B of the Marriage Act. The effect of these amendments is that capacity to marry in Australia after 7 April 1986 is governed by Australian law (s 23B), whereas prior to that date, under the old s 23, the capacity of a people domiciled overseas to marry was governed by the laws of the ante-nuptial domicile, except as regarded marriageable age as provided in s 11. The operative provisions in subss (1)(a)–(e), (2) and (3) of the new s 23B are, to all intents and purposes, identical to the old s 23, except for some insubstantial changes in tense. The 1985 amendments also include the addition of three further subsections amplifying the provisions concerning the relationship by and with adopted persons, and s 23A exempts marriages by foreign diplomatic or consular officers.29 The following discussion of void marriages will not further distinguish between the grounds in ss 23 and 23B unless indicated. [page 312]

6.14

Section 23B of the Marriage Act 1961 (Cth) states:

(1) A marriage to which this Division applies that takes place after the commencement of s 13 of the Marriage Amendment Act 1985 is void where — (a) either of the parties is, at the time of the marriage, lawfully married to some other person; (b) the parties are within a prohibited relationship; (c) by reason of section 48 the marriage is not a valid marriage; (d) the consent of either of the parties is not a real consent because — (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or (e) either of the parties is not of marriageable age, and not otherwise. (2) Marriages of parties within a prohibited relationship are marriages — (a) between a person and an ancestor or descendant of the person; or (b) between a brother and a sister (whether of the whole blood or the halfblood).

The Act further provides that for the purposes of s 23B(2), a relationship constituted by adoption shall have the same effect as a natural relationship constituted by birth: s 23B(3). Moreover, such a relationship, once constituted, remains effective for the purposes of s 23B(2), even though the relationship ceases to have effect where the adoption is cancelled or superseded by another adoption: s 23B(5). The ‘new’ grounds on which a marriage is void are almost identical to those set out in s 18 of the Matrimonial Causes Act 1959 (Cth). The only change of substance is in the prohibited relationships. Whereas the Matrimonial Causes Act contained a prohibition on a number of relationships, both of consanguinity (blood relationship) and of affinity (relationship by marriage), as set out more particularly in the Second Schedule to that Act, the prohibition has been simplified to those now set out in s 23B(2) of the Marriage Act.

Subsisting prior marriage 6.15 A person who is already married is not free to marry anyone else while that prior marriage subsists: see 5.30. As discussed in Chapter 5 (see 5.4), the Marriage Act 1961 (Cth) defines marriage to mean ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.30 Thus, under Australian [page 313] law, only monogamous marriage is permitted. To enable parties to certain foreign polygamous marriages to obtain relief (such as divorce and property), s 6 of the FLA gives limited recognition to such marriages. An earlier marriage is only terminated by the death of the other spouse, annulment of the marriage (via a decree of nullity or a declaration under s 113 of the FLA) or divorce. Therefore, the issue of nullity on the ground of a prior marriage is more often than not a matter of evidence (as to marriage, divorce or death). 6.16 Where there has been a divorce, it is only once the divorce order takes effect that divorce is complete. After this, both parties are free to contract a subsequent marriage, as confirmed by s 59 of the FLA. If a person has obtained a divorce order but goes through a form of marriage with another person before that order takes effect (which normally happens one month after the order is made), that later marriage will have no legal effect, even if the divorce order is subsequently made final. In Marriage of Miller,31 the marriage was void because the prior marriage of one of the parties had been dissolved, but no decree absolute32 had ever been granted. This situation used to arise more frequently than it does now. This is because the grant of the final divorce order is now more or less automatic except in cases in

which, under s 55A (formerly s 63) of the FLA, an adjournment is ordered by the court determining the initial divorce application because the arrangements for a child under 18 years are not satisfactory. Unfortunately, under the prior provisions it sometimes happened that the parties omitted to initiate the application that was necessary to make the divorce final: see 6.9. This might attract another lawyer’s fee. As a result, a party could unknowingly commit bigamy and contract an invalid marriage. 6.17 More often, the issue of nullity has arisen where a person appears to have entered into two marriages, but has not divorced the first ‘spouse’. Where it is clear that there are two properly contracted marriages, and no intervening divorce, there is not much to be done — the second marriage will be void. Where there is no conclusive proof of one of the marriages in question, a court may still find that a marriage exists due to the operation of the common law presumptions of validity of marriage, discussed at 5.74–5.77. 6.18 A person who goes through a form of marriage while already married may be guilty of bigamy, an indictable offence under s 94 of the Marriage Act 1961 (Cth) with a maximum penalty of five years’ imprisonment. The offence is prima facie committed by both parties. However, the considerations applicable in the criminal law are not the same as those governing the law of marriage and divorce. [page 314] In particular, there are defences available to the criminal charge, such as a reasonable, if mistaken, belief that the former spouse was dead, or a reasonable belief that the other party to the bigamous ceremony was free to marry.33 However, even if such a defence is available in relation to the criminal proceedings, it cannot bring about a valid marriage: see 5.30.

When a court has determined in FLA proceedings that a marriage is void for bigamy, it is open to the court to refer the papers in the matter to the appropriate authority of the Commonwealth of Australia to consider a prosecution for bigamy. A referral of this nature was made, for example, in the case of Hiu v Ling,34 where the respondent husband knowingly entered into a marriage with a woman in Australia at a time when he was married to another woman in Hong Kong. 6.19 When death or one of the grounds of nullity cannot be proved, a person who is married and who wants to be free to remarry needs to obtain a divorce. An unexpected difficulty arose in the 1997 case of Marriage of Manning.35 In that case, a wife applied for a divorce and to have service of that application dispensed with. The parties had been living separately and apart since 1970, when the husband had left the matrimonial home by car at the usual time, apparently in order to go to work. Later that day, his car was found abandoned by the bank of a river that was on the way to his place of work. Nothing untoward appeared to have happened — the ignition keys were in the car and there was a quantity of money on the front seat. An extensive police search was undertaken, but no sign of the husband was ever found. None of his family ever heard of or from him again. There was no evidence that he had had any reason to disappear suddenly or to commit suicide. In a case of this kind, it was formerly possible to obtain a divorce on the ground of presumption of death under s 28(n) of the Matrimonial Causes Act 1959 (Cth), although this ground was seldom used. The FLA did not re-enact the provision. No doubt it was considered that it could have no conceivable advantage since a divorce could now be obtained after 12 months’ separation as against the seven years required for the presumption of death to operate. In Manning’s case, however, Lindenmayer J rejected the application for divorce on the ground that he could not be

satisfied that the husband was alive. If he was dead, there would be no marriage to be dissolved. Such evidence as there was tended the other way. Lindenmayer J was therefore of the opinion that he had no jurisdiction to grant a divorce. 6.20 A secondary argument — that a court in those circumstances could make a declaration of death under s 113 of the FLA — was also dismissed. Section 113 empowers the court to make ‘such declaration as is justified’ in proceedings relating [page 315] to s 4(1)(b) of the definition of matrimonial cause in the FLA. Section 4(1)(b) is concerned with declarations of validity of a marriage, or of a divorce, ‘by decree or otherwise’. (At the time of Manning, the term ‘dissolution of marriage’ was used in s 4(1)(b), rather than ‘divorce’.) The argument that this term covered dissolution by death in this context was rightly rejected, and it was held that the paragraph as it then stood related only to termination of a marriage by law and not by death. Even though marriage can be dissolved by death, that kind of dissolution could not have been assumed to be intended under s 4(1), which is concerned with decrees and the operation of laws. Section 113 could not, therefore, be applicable. Any doubt is now removed by the replacement of the term ‘dissolution of marriage’ with ‘divorce’. The Full Court on appeal took a different view as to the treatment of the issue of the husband’s death and allowed the wife’s appeal.36 The judgment of Emery SJ, with whom Maxwell J concurred (Murray J came to the same conclusion in a separate judgment), examined the difference between a presumption of death and a positive finding that a party was dead. In this case, only positive evidence of death was relevant to these applications, and there was none. In the absence of that,

service could be dispensed with and the requirements of s 48 had been met. The fact that the husband could not be found was no bar to the grant of a divorce. In other words, provided there was no positive proof of death, the wife did not need to prove the husband was alive, just that she had made appropriate attempts to serve him with the divorce application. Having done that, the application could proceed.

Prohibited relationships 6.21 These relationships are set out in s 23B(2) of the Marriage Act 1961 (Cth) and may be constituted by adoption or successive adoptions: s 23B(3) and (5). This is normally a simple issue of fact. The only marriages of relatives now prohibited are between direct ancestors and descendants (parent–child, grandparent–grandchild) and between brother and sister, whether of the whole- or the halfblood. 6.22 The solemnisation of a marriage ceremony between persons coming within the prohibited relationships is an offence on the part of the person performing the ceremony.37 The parties, where they have failed to disclose this potential impediment to a valid marriage in the required notice to the authorised celebrant, also thereby commit an offence.38 Under s 23B(3), the prohibitions against marriages between the relatives set out in para (1)(b) include relationships constituted by, or traced through, adoption. [page 316] Note the wording in subs (3) referring to a person who ‘is or was’ an adopted child. Section 23B actually makes this clearer in a new subs (5):

… (a) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; …

Thus, if the adoption is subsequently annulled or rescinded, the prohibited relationship remains.

Invalidity under s 48 of the Marriage Act 1961 (Cth) 6.23 To be valid, a marriage must comply with certain formalities: see 5.52–5.59. Section 48(1) of the Marriage Act 1961 (Cth) provides that a marriage that is solemnised otherwise than in accordance with the provisions of Div 2 of Pt IV of the Act (ss 40–47) is not a valid marriage. Division 2 deals with marriages by ‘authorised celebrants’39 and the formalities associated with them. 6.24 However, s 48(2) lists a number of exceptions to the invalidation of a marriage for failure to comply with the prescribed formalities. Subsection (3) further saves a marriage from invalidity where the person solemnising it was not authorised under the Act to do so, if either of the parties at the time of the ceremony believed that that person was authorised to perform the ‘putative’ marriage (ie a void marriage where at least one of the parties to the marriage believed it to be valid): see 5.77.40 In such a case the marriage is valid, provided the ‘form and ceremony of the marriage … were such as to show an intention’ by each party to enter into a valid marriage with the other.41 Where the celebrant is not authorised under the Act, and the parties are aware of that fact, then the marriage is invalid, and the concept of the ‘putative marriage’ will not save it. In Marriage of Rewal,42 a Hindu couple went through a form of marriage in the Melbourne Town Hall, celebrated by a Hindu celebrant, using

Hindu rites. The parties stated that they knew it was necessary that their marriage be solemnised in a ‘western style ceremony’, in addition to the Hindu ceremony. This was not done and the marriage was accordingly declared to be void. [page 317] As the Marriage Act only requires that the marriage be ‘solemnised by or in the presence of an authorised celebrant’,43 it is not necessary for the celebrant to conduct the ceremony. In W v T,44 the parties had knowingly chosen an unauthorised celebrant for their wedding, relying on that person to ensure the necessary formalities were dealt with. The inconspicuous presence of an authorised celebrant at the rear of the church ensured the marriage was valid. The registration of ministers of religion as marriage celebrants is regulated by detailed provisions set out in ss 25–38 of the Marriage Act. The solemnisation of marriage by ministers of religion is a traditional device in UK and Australian marriage law. In this it differs from the laws of some overseas countries where only the civil marriage is legally recognised, and the role of the clergy in celebrating religious ceremonies of marriage is a purely private matter and has no legal effect. The combined effect of subss (1), (2) and (3) is that most formalities are not crucial to the validity of the marriage. Marriages performed by (or only in the presence of) an unauthorised person, where neither of the parties at the time believed that person to be authorised, will be void (as in Marriage of Rewal, above). A failure to meet the ‘form of ceremony’ set out in s 45 will also be fatal; however, this provision is not prescriptive and permits a wide variety of forms. Furthermore, the courts apply a common law presumption that a marriage has resulted in a valid marriage where there is evidence

that the parties went through a ceremony of marriage: see 5.74–5.77. This presumption is rebuttable and will not save a marriage that is held to be void by reason of s 48 pursuant to s 23B(1)(c).

Absence of real consent 6.25 A marriage is void under s 23B(1) of the Marriage Act 1961 (Cth) where: … (d) the consent of either of the parties is not a real consent because: (i) it was obtained by duress or fraud; (ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or (iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony.

The need for true consent for a marriage to be valid has been established for a long time.45 Consent being an essential prerequisite to the formation of a valid marriage (see 5.14), it logically follows that if such consent is lacking, the marriage cannot be regarded as having any valid foundation. While all the above heads [page 318] are merely examples of lack of consent, they are the only bases on which lack of consent can be argued to invalidate a marriage. If any one of them occurs, so that it can be said that the party whose consent is in question had never given a true and voluntary consent, the marriage will be set aside.46 6.26 Inherent in that proposition is the requirement that the consent was given with a full understanding of the marriage

contract and all that it involves, and that it be directed to the identity of the person with whom it is entered into. Where there is a mistake as to the identity of the other party or a mistake as to the nature of the ceremony, the basis for setting aside the marriage is the same, namely that no true consent existed as to the basis on which the marriage had been entered into. Once the ceremony of marriage has taken place without apparent reluctance or complaint, there is a presumption of consent that only the strongest evidence can rebut. The attitude of the courts was well stated by Collins J in Cooper v Crane:47 When a person of full age and of sound mind has gone through the ceremony of marriage publicly in the presence of witnesses who discovered nothing in her demeanour to suggest constraint, and has herself complied with the formality of signing her name and answering questions without apparent difficulty or confusion, very clear and cogent evidence must be given before the presumption of consent can be rebutted and the marriage annulled.48

Each of the statutory grounds relating to consent will now be considered in turn.

Duress or fraud 6.27 Some of the UK cases debate the question of whether the result of duress is to render a marriage void or voidable. This question does not now arise in Australia, where the distinction between void and voidable marriage has ceased to exist with the introduction of the FLA — a marriage is either valid or void. The effect of duress in Australia is to make the marriage void. Apart from that question, however, the principles set out in the UK cases concerning duress have been applied in decisions arising under Australian law. 6.28 At the end of the nineteenth century, UK law required that the effect of the duress must be such that either: … the petitioner was so perturbed by terror that her mind was unhinged and she did not know what she was doing … or that though she understood what

[page 319] she was doing her powers of volition were so paralysed that by her words and acts she merely gave expression to the will of the respondent and not her own.49

In this case (Cooper v Crane:50 see 6.26), the petitioner failed to establish her case. The threat made by the respondent was that he would blow his brains out if she refused to marry him. The judgment shows that the evidence by which the petitioner sought to prove her case failed to convince the court that she satisfied either of the two conditions in the quoted excerpt. The factual situations encountered in these older cases reflect social situations in which the drama of threats or duress was performed. In Scott v Sebright,51 threats made by the man related to the woman’s property (which it was his object to secure) and to her reputation. By threatening her with bankruptcy proceedings, spreading slander about her chastity and, finally, threatening to shoot her, he reduced her to a state where she ‘was not a free agent when she went through the ceremony’.52 This situation is not confined to any particular period, and over the years various similar situations found their way into court: see, for example, Kecskemethy v Magyar,53 Leonards v Leonards54 and Hussein (otherwise Blitz) v Hussein.55 In Parojcic v Parojcic,56 the petitioner had been under pressure from her father, who had threatened to send her back to Yugoslavia unless she married the respondent. In this case, the test in Cooper v Crane was met. 6.29 The decision in Parojcic exemplifies an extension of the principle enunciated in Cooper v Crane, and shows that the petitioner’s will need not necessarily be overborne by the action of the respondent, but that the duress may proceed from some other person or persons. In the 1954 case of H v H,57 the duress was even more remote than in Parojcic, resulting from the political situation in the petitioner’s country of origin, Hungary, from which she

wished to escape. The 18-year-old woman was fearful of being sent to a concentration camp by the Russian-controlled Communist government. The only way she could escape was by marrying the respondent, her cousin, and thereby obtaining a French passport. In reality, it was a marriage of convenience. That fact in itself would not have been sufficient to have the marriage set aside for, whatever their motives, the parties had undoubtedly intended to marry each other. [page 320] As the judgment of Karminski J shows, however, it was only because the fear of remaining in Hungary was of such a degree as to negate free consent that the petitioner entered into the marriage at all. The decree of nullity was granted. A decree of nullity was also granted in similar, if not more dramatic, circumstances in Szechter v Szechter,58 where the parties had married in a Polish prison to try to extricate the wife, a political prisoner, who they feared would not survive. Here, Simon P formulated the test for duress more narrowly than his predecessors: It is, in my view, insufficient to invalidate an otherwise good marriage that a party has entered into it in order to escape from a disagreeable situation, such as penury or social degradation. 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 threat of immediate danger, for which the party is not himself responsible, to life, limb or liberty, so that the constraint destroys the reality of consent to ordinary wedlock. I think that in the instant case the test is satisfied.59

6.30 In the early 1980s, two cases involving parental pressure to marry saw a relaxation of the test for duress as stated in Szechter v Szechter. In the Australian case of S & S,60 the applicant was of Egyptian origin and married at the age of 16 in a ceremony of the Coptic Orthodox Church in Australia. She had done so under

pressure from her parents, who had arranged the marriage in accordance with traditional custom in the ethnic culture of her origin. The marriage was not consummated and the parties separated four days after the ceremony. The application for nullity had the family’s support. In a perceptive judgment, Watson J examined the traditional concept of duress and argued that an emphasis on terror or fear was unnecessarily restrictive: A sense of mental oppression can be generated by causes other than fear or terror. If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated by duress and is not a real consent. This is so howsoever the oppression arises and irrespective of the motivation or propriety of any person solely or partially responsible for the oppression.61

Watson J quoted Lord Simon in Director of Public Prosecutions (NI) v Lynch,62 where marital coercion and duress were equated with the proposition ‘this is not my will, but I must do it’. The duress here was not constituted by threats, [page 321] but by ‘external human pressure’ — by ‘any force overbearing the will’. In the circumstances of the present case of a young girl under pressure from her parents and family, in her particular cultural and religious environment, duress had been amply made out. In holding there was duress, Watson J tried to widen the concept by saying that it was not necessary to insist upon terror or fear, but that mental oppression was sufficient to prevent the applicant from exercising voluntary ‘consent’: When the ordinary man says he is acting under duress it is usually the element of oppression that is uppermost in his mind, not necessarily the form of that oppression, be it constraint, threat or otherwise. It is the effect of the oppression on the mind that should be the operative factor, not the form of such oppression.63

Teves & Campomayor64 applied the principles from S & S to a different factual situation. The wife applied for a decree of nullity of her marriage, which had taken place in 1991 in the Philippines. Both parties were Filipino citizens, but the wife had come to Australia in 1992 and since become an Australian citizen, while the husband had remained in the Philippines. The wife’s ordinary residence in Australia gave the court jurisdiction to hear the matter. The wife alleged physical and sexual assaults on ‘numerous occasions’, in consequence of which she said she had been ‘intimidated and in fear of the husband’. She further alleged that she had married the husband as a result of her fear of him and his violence towards her. He was said to have raped her repeatedly. She alleged that she did not invite any members of her family to the wedding, and that the parties had not cohabited at any time, either before or since the marriage. The particular allegation that was said to have induced the marriage occurred when the husband, who had then repeatedly asked her to marry him, which she had refused, took her to a hotel where he again asked her to marry him and she again refused. They remained in the hotel for some hours, during which time he repeatedly hit her and smashed her head against a post. Finally, ‘because of what she described as “the constant violence” she then agreed to marry him’.65 Lindenmayer J discussed the concept of ‘duress’ in this context.66 After referring to Watson J’s judgment in S & S, he continued: From the above, it can be said that duress does not necessarily need to involve a direct threat of physical violence so long as there is sufficient oppression, from whatever source, acting upon a party to vitiate the reality of their consent.67

[page 322] As it happens, the wife in this case was not able to satisfy

Lindenmayer J that the events surrounding her marriage resulted in duress vitiating her consent to marry. Her claims lacked detail, there was no supporting medical evidence and virtually no corroborative evidence of the events she described. Moreover, the particular time at which the question of duress must be established is the time of the ceremony. In this case the evidence related mostly to events that had occurred earlier, the last incident being at least 10 days before the wedding. In Kreet v Sampir,68 the applicant wife was successful in obtaining a decree of nullity on the ground that her consent to the marriage was not real because she was under duress at the time of the ceremony, which took place in India. This case involved an arranged marriage entered into between the woman and a man in India chosen by her parents to be her husband. The wife at all times made known to her parents that she did not consent to be married to the man they had chosen and that she wanted to marry another man that she had met in Australia. The pressure exerted on the wife to go ahead with the ceremony included threats by her father to kidnap and rape the mother and sisters of the man she wished to marry. While recognising that arranged marriages are a cultural practice, Cronin J stated: Cultural practices are sensitive issues but in respect of this application, the law to be applied is that of Australia. If a cultural practice relating to a marriage gives rise to the overbearing of a mind and will so that it is not a true consent, the cultural practice must give way. Arranged marriages such as would appear to have been the parents’ intent, must not carry with them lack of consent.69

6.31 A lack of real consent may also result from fraud, which has always been held to relate to fraud or deception as to the ‘identity of a party’, or as to the ‘nature of the ceremony’.70 Specifically, in the words of the Privy Council in Swift v Kelly:71 ‘no marriage shall be held void merely upon proof that it had been contracted upon false representations and that, but for such contrivances, consent never would have been obtained.’ 6.32

There was an attempt to extend this principle in Marriage of

Deniz.72 Frederico J held that consent which had been obtained by an immigrant, who wished to marry an Australian citizen in order to obtain permission for permanent residence in Australia, had been obtained by fraud within the meaning of the section. A nullity decree was therefore made. [page 323] The facts involved a young Lebanese Australian woman who had been induced by a Turkish visitor to marry him. The man pretended to love her, but what he really wanted was permanent residence, which he believed he would gain by marrying her. The marriage was never consummated. While consummation is of no legal significance today, it may still be of some evidentiary value. The man left the woman soon after the marriage and she had a nervous breakdown and attempted to commit suicide. One reason why the wife sought nullity rather than divorce was that culturally, divorce was regarded as a serious slur on her in her ethnic community, which is why she also attempted suicide. In holding that this was a case of fraud, Frederico J sought to justify his decision by saying that it was a case of consent being induced by a trick, not as to the identity of the other party or as to the ceremony, but as to the very concept of marriage itself. This was an obvious attempt to widen the traditional scope of fraud. 6.33 What Frederico J was really doing was trying to widen the concept of mistake in s 23B(1)(d)(ii) by including a mistake based on fraud. He went on to add: The legislature must have intended the words ‘or fraud’ to have some wider meaning, and it would follow that the Court is bound in the exercise of its jurisdiction under the Family Law Act to give effect to such wider meaning.73 This is a case of consent being induced by trick, not as to identity or as to the nature of the ceremony, but as to the very concept of the marriage itself … In my opinion, if this Court is not to protect the victim of such a deception then it would be failing to give effect to the provisions of … the Family Law Act, and in

addition it would be failing to fulfil its obligation under sec 43(a) of the Act to have regard to the need to preserve and protect the institution of marriage.74

In coming to this conclusion, as we have seen, Frederico J took the view that the fraud, while not going to identity or to the nature of the ceremony, went to the very concept of the marriage itself. His Honour argued that the true intent of the section must be wider than the traditional doctrine indicated. He reached this conclusion on the ground that any belief by a party as to identity or as to the nature of a ceremony, which was induced by fraud as specified in s 23(1)(d)(i), must also be covered by the (wider) provision as to mistake: s 23(1)(d)(ii). Hence, parliament must have intended fraud to cover other matters if that subparagraph were not to be regarded as superfluous. Any fraud contemplated by the section must, however, be one that went to the root of the marriage contract. By analogy with the law of contract, here there had been a total failure of consideration. [page 324] 6.34 An unsuccessful attempt at extending these principles even further was made by the applicant in Marriage of Suria.75 The applicant was an Australian woman who had married a Filipino man with whom she had previously corresponded as a ‘pen pal’. There was little doubt that the respondent sought to enter into this marriage for the purpose of gaining entry into Australia as an immigrant who was married to an Australian. The applicant gave way to pressure and entered into the marriage in Manila after having met the respondent only twice. The respondent attempted to consummate the marriage but failed in this attempt, and the parties separated almost immediately afterwards. This case was also decided by Frederico J. However, his Honour distinguished this case from Deniz on the ground that there was no fraud here because, whatever the motives of the respondent,

the evidence showed that he had intended this to be a marriage in fact as well as in form. Moreover, he had made his motivation — entry into Australia — clear to the applicant so that she could hardly claim to have been imposed upon by it. Common to both Deniz and S & S76 (see 6.32 and 6.30 respectively) is the awareness of the courts of the role that ethnic and multicultural considerations have come to play in our society, and a preparedness to allow them to play a part in working out legal problems. However, as the comments of Cronin J in Kreet v Sampir77 (see 6.30) make clear, cultural practices must give way if they do not comply with Australian law. One may feel sympathy with both Frederico and Watson JJ in their attempts to extend the law to cover a perceived injustice or to cope with changing social conditions. The main difference between the two attempts lies in the fact that Watson J’s decision merely adds a wider dimension to the meaning of ‘duress’ by focusing on the element of oppression, which is part of the duress. Frederico J, on the other hand, went much further and sought to extend the meaning of ‘fraud’ by focusing on what he refers to as ‘the very nature of marriage’; that the deception, in other words, went to the root of the marriage contract. The fact is, though, that such deceptions (such as marrying under the false pretence of loving the other party) have never amounted to grounds for nullifying a marriage. Frederico J said in Deniz: The respondent has not had the slightest intention of fulfilling in any respect the obligations of marriage … His conduct amounts to a total rejection of the institution of marriage and what it stands for. He clearly deceived the applicant into marriage for his own personal motives and with the intention of summarily rejecting her immediately after the ceremony.78

[page 325] However, these are either collateral matters or they are evidence of future intentions. The marriage in Deniz in all other respects

complied with the requirements of a valid marriage, and the traditional limits of matrimonial fraud would need to be widened to allow this to vitiate consent. The applicant was not deceived as to the person or the ceremony. In the decision of Watson J in S v S, the presence of oppression, like duress, still meant that a party entered into a marriage unwillingly and against their free will. Thus by underlining oppression as an element in duress, Watson J may have thrown some light on that ground, but he did not recast it as Frederico J attempted to do. It should also be remembered that the 12 months’ separation ground for divorce was introduced deliberately and made divorce relatively accessible to most people. Accessible divorce allowed the abolition of numerous other grounds, both of nullity and divorce, which had existed before. It was therefore no longer necessary to resort to legal fictions or other extensions of the law to obtain a remedy. 6.35 Since Deniz, there have been several decisions disapproving the extension by Fredrico J of the meaning of fraud and reasserting the traditional criteria in this area of the law. The case that started this reassertion of orthodoxy was Marriage of Otway,79 a decision of McCall J. Here, too, the applicant husband had married a visitor from the Philippines who desired permanent residence. Four days after the marriage, the respondent wife informed the applicant that she had previously met another Australian named Bull whom she had wanted to marry. Bull was prepared to live with her but not to marry her, so to gain residence she had married the applicant. The applicant then threatened her that he would inform the immigration authorities, so she remained with him for another three months. The applicant complained that his consent had been obtained by fraud. McCall J found as fact that the wife had only married the applicant to gain permanent residence. He did, however, also find that when they went through the marriage ceremony, each had

intended to marry the other and each consented to the marriage and wanted the marriage to be brought into existence. Motive or future intention is irrelevant. McCall J distinguished between ‘misrepresentations in collateral matters’, such as quality of persons or future intentions, from ‘fraud going to the essence of intention’ to bring about the marriage. The centre of his Honour’s reasoning concerns ‘consent’, on which he said: In the past once a marriage ceremony had been proved there was, and still is, a presumption of consent. The onus of proving the absence of consent rests upon the person who seeks to have the marriage annulled. What is clear from the past cases is that the fraud that is referred to, to show that there was no real consent to the marriage, does not include fraud inducing a consent. Accordingly,

[page 326] fraudulent misrepresentations relating to the quality of a person or as to future intentions was never regarded as sufficient to annul a marriage: Moss v Moss. Nor also have mental reservations on the part of one or both of the parties to a marriage affected its validity … In my view, whatever the meaning of ‘fraud’ may be, it has so far not been extended in English law to include fraudulent representations or marriages where one party has a mental reservation concerning the future of the marriage even where such reservations are unknown to the other party. Nor, in the light of the history of the interpretation of the concept in the past, do I believe that there is sufficient statutory warrant to depart from this established interpretation. 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 sub-paragraph only clarified the fact that an innocent as well as fraudulent mistake could result in the relevant lack of consent to the marriage.80

6.36 The next case in which fraud was relied upon as a ground of nullity was another immigration case, Al Soukmani & El Soukmani,81 decided in 1989, by Kay J. A month after Al Soukmani, the case of Osman & Mourrali82 was decided by Nygh J, followed by Najjarin & Houlayce,83 also a decision of Nygh J. 6.37

In the Osman and Najjarin cases, Nygh J reiterated the

importance of distinguishing between fraud and deceit in inducing marriage on the one hand, and mental reservations on the other. The facts in Osman were practically the same as those in Deniz.84 Nygh J referred to that case, but rather than agreeing with Frederico J in Deniz preferred to follow McCall J’s decision in Otway. In the course of his judgment in Osman, Nygh J discussed the applicant’s argument that this suggested ground of fraud can only be relied on by an innocent party (ie one not party to the fraud): The difficulty with this line of argument is three-fold. In the first place … it would have the effect of rendering a marriage in effect voidable, although the Family Law Act has abolished that category, for it can only be annulled upon the application [of the] innocent party should that party choose to apply. Secondly it ignores the well-established principle that a marriage can be annulled on the application of the wrong doer: Petersen v Petersen (1927) 44 WN (NSW) 96, because there can be no estoppel as regards marital status. That solution

[page 327] is clearly dictated not only by the law but also by policy which would abhor ‘deemed marriages’. Finally, I would have serious doubts about the proposition that such marriages are inherently void, but cannot be annulled because of the culpability of the applicant. In Puttick v Attorney-General [1980] Fam 1 (UK), where a declaration of validity of a marriage was refused on the ground that the applicant should not be allowed to take advantage of her own wrong in entering into an immigration marriage, Sir George Baker P at 9 said that the lack of any purpose and intent to establish a genuine marital union was immaterial to the validity of the marriage. In other words, he refused to make a declaration as to the validity of a marriage which was in fact valid, in his discretion to grant such relief under the English legislation.85

On the more general issue of fraud and consent to marry, Nygh J went on to say: But if a person wishes to go through a ceremony of marriage with a person whose identity he or she is aware of, then it matters not that that consent is induced by promises of eternal happiness, luxurious living or even the promise to live together forever after. For if it were a ground that a marriage could be annulled on the ground that a party was defrauded as to the intention to cohabit, where should the

court draw the line? Love and affection are regarded by many as essential to a modern marriage: would lack of love base an application for annulment? Again, the production of offspring is a traditional concern of marriage. Would a deception as to the intention to bear them or procreate them found an application? Where does one draw the line between attributes of wealth, virtue, beauty or potency on the one hand and the fundamentals of marriage such as cohabitation, mutual love and support and the procreation of children of the parties?86

This decision was followed in Marriage of Hosking,87 another immigration case. 6.38 The principles stated in Osman, Najjarin and Hosking, now well settled, were applied in 2011 in Rick v King.88 In this case, the husband sought a decree of nullity on the basis of the failure by the wife to inform him that she was a diagnosed AIDS patient at the time of their marriage. The Full Court agreed with the conclusion reached by Crooks J at first instance that while the wife may have lied to and deceived the husband by not disclosing her medical condition, this did not establish the necessary ground for nullity. There was no doubt in this [page 328] case that the husband married the women he thought he was marrying and the parties went through what they knew to be a valid marriage ceremony.89 6.39 Where do these decisions leave fraud as the basis of an application for nullity? It appears that the only types of fraud that can be relied on to found an application in nullity are fraud as to the identity of the other party or as to the nature of the ceremony. As these categories of mistake render a marriage void in any event, even if the mistake arises innocently, it is difficult to see what the separate head of fraud adds to the law of nullity.

Mistake

6.40 Only two kinds of mistake will render a marriage void: mistake as to the ‘identity’ of the other party and mistake as to the ‘nature of the ceremony’: s 23B(1)(d)(ii) of the Marriage Act 1961 (Cth). In both cases, the basis for setting aside the marriage is the same, namely that no true consent existed to the marriage entered into. Both parties to a marriage must consent to it; if even the consent of one party is not real, true consent is lacking.

Mistake of identity 6.41 Modern examples of mistake as to identity are extremely difficult to find because it is unusual for such a mistake to occur. The mistake in question must go to the identity of the party, not merely their name. Nor is it sufficient if the mistake goes merely to any incidental attributes of the other party, such as fortune or family.90 The key question seems to be whether or not the party alleging the mistake (A) consented to marry the person physically standing in front of them at the altar (B), regardless of what B might have told A about themselves. To take an extreme example, if a twin took the place of their sibling at the marriage ceremony, and the other party was not aware of the deception, then a mistake as to identity would have occurred. One of the rare cases in which a claim of nullity on the basis of mistake as to identity succeeded was the Victorian case of Allardyce v Mitchell,91 in which Stawell CJ held that such a mistake, as distinct from a mere mistake of name, had occurred. It is difficult to find the decision convincing, as the case simply involved the groom calling himself by the name of someone known (by name only) to the bride. As we have seen above, ‘fraud’ as to ancillary or collateral matters — such as your name — does not render a marriage void. In C v C,92 a New Zealand case, Callan J characterised Allardyce as an ‘oral unconsidered judgment’ of somewhat [page 329]

ancient authority and arising in an undefended case in which the judge had not had the benefit of argument upon the other side. Needless to say, the New Zealand Supreme Court in C v C did not follow Allardyce. 6.42 Mistake of identity was (somewhat surprisingly) applied in C & D (falsely called C).93 This case concerned a groom who suffered from an intersex condition, whereby he presented as male, but was chromosomally female.94 The bride was unaware of this. Bell J held that the marriage was void for mistake as to identity, saying that: … the wife … did in fact believe that she was marrying, a male. She did not, in fact, marry a male but a combination of both male and female and notwithstanding that the husband exhibited as a male, he was in fact not and the wife was mistaken as to the identity of her husband and the ground … is made out.95

It is submitted that this conclusion was misconceived and that a declaration as to the validity of the marriage would have been more appropriate. The wife had in fact made an application in those terms and it was as a result of a direction from the judge that the application was changed to one of nullity on the ground of mistaken identity. 6.43 The authorities show that what was involved here was not a mistake of identity within the meaning of s 23B(1)(d)(ii). If the ‘husband’ was C and the wife married C knowing or rightly believing him to be C, the person, then there was no mistake as to his identity. The mistake applied rather to his sexual attributes, whether he was male, female or both in one; but that does not go to the identity of a person. Bell J in C & D was also misled by certain UK authorities that have held that a declaration was inappropriate and that a nullity suit was the proper method of procedure. However, the reasons for the UK decisions were historical and based on different provisions from those of Australian statute law. The FLA provides the

procedure for declaration of validity in s 4(1) (para (b) of ‘matrimonial cause’) and s 113. It is submitted that based on the findings of fact in C & D, the court could have declared the purported marriage not to be a marriage because it was not a marriage between two persons who are, respectively, male and female.96 This definitional requirement exists at common law and is now set out in s 5(1) of the Marriage Act 1961 (Cth): see 5.13.97 [page 330] This basic premise remains unchanged in spite of the subsequent decision of the Full Court (Nicholson CJ, Ellis and Brown JJ) in Re Kevin (Validity of marriage of transsexual),98 which clarified what is meant by the concept of a ‘man’ or a ‘woman’. There it was held that a post-operative transsexual man (registered at birth as female) was a man for the purposes of marriage, and that the term ‘man’ had its ‘contemporary, normal and everyday meaning’. This was reinforced by the fact that the term was not defined (at that time) by the Marriage Act. The definition of marriage in s 5(1) of the Marriage Act was enacted after this decision, but the words ‘man’ and ‘woman’ were not themselves defined. It has been suggested that the reason for the insertion of this definition of marriage was to ‘prevent the recognition of same sex marriages celebrated overseas, and to make it more difficult for a transsexual person to marry’.99 While it is clear that the former concern drove this amendment,100 the question of the marriage of transsexuals was not expressly dealt with in parliamentary debate, despite the Commonwealth Government’s plain objection to the outcome in Re Kevin.101 It would seem that Re Kevin, which did not challenge that a marriage can only be validly contracted between a man and a woman, remains good law.

So, while it may not have been appropriate to argue mistaken identity to nullify the marriage in C & D, since Re Kevin the question of whether there is a marriage between a man and a woman will require more than a consideration of biology. As the party to the marriage in Re Kevin who was held to be a man had undergone a full surgical gender reassignment, the court was not required to consider the question whether anything other than a full surgical reassignment could come within the meaning of ‘man’, which now appears in the statutory definition of marriage in s 5(1) of the Marriage Act. For further discussion, see 5.13. [page 331]

Mistake as to the nature of the ceremony 6.44 Mistakes as to the nature or effect of a ceremony are also uncommon. The examples most often quoted concern applicants duped into attending some religious or other ceremony which is represented to be something other than a ceremony of marriage. Examples are a ceremony of religious conversion,102 of betrothal,103 or merely a ceremony that is not known to be a marriage ceremony and is believed not to be one.104 In Najjarin v Houlayce,105 the applicant, a Muslim, participated in what she believed to be just part of the ceremony necessary for a legal marriage. Certificates were signed, but there were no marriage vows nor any expression of consent to marry. Nygh J held that these circumstances were sufficient to render the marriage void due to mistake as to ceremony. A similar conclusion was reached in a case in which a Muslim couple did not understand that the process they were going through was intended to be their marriage.106 Mistake as to the legal effect of a marriage ceremony is not mentioned in s 23B(1)(d)(ii). The distinction between this and a mistake as to the nature of the ceremony may perhaps be a subtle

one at times. In any event, it is clear that simply misunderstanding the legal consequences of an otherwise valid marriage will not suffice. This fits with the idea mentioned below (see 6.46) that consent to marriage only requires consent to the common notion of marriage, not to all of the legal ramifications of marriage. As illustrated by Way v Way,107 certain British servicemen on war service in Soviet Russia during World War II married Russian wives, but found that when they wanted to return home, their wives were not permitted under Russian law to leave Russia in order to join their husbands in Britain. All kinds of arguments as to mistake and frustration were addressed to the court which refused, however, to set the marriages aside on that particular ground. More recently, a couple hoping to appease relatives by undergoing a marriage in Hawaii found that, contrary to their understanding (gleaned from a legal centre’s handbook), the marriage was valid in Australia. There was no doubt the couple intended to go through a marriage ceremony that would be valid in Hawaii; the fact that they were mistaken as to the legal consequences of that marriage in Australia was irrelevant.108 Therefore, the marriage was valid. Similarly, [page 332] an Australian woman who underwent a marriage ceremony that she believed was only effective under Islamic, and not Australian law, was found by Fowler J to be validly married.109

Mental incapacity 6.45 If one of the parties to a marriage is mentally incapable of understanding the marriage contract, it cannot be supposed that true consent can be implied, and the marriage will consequently be void: s 23B(1)(d)(iii). The cases are, not surprisingly, few and it

seems unlikely in any event that many difficulties would arise in relation to this ground. The presumption is that when a marriage has been celebrated, the parties understood the nature of the ceremony. The onus of disproof will therefore be on the party disputing the validity,110 unless there is proof of insanity generally, when the burden is on the party asserting the validity of the marriage.111 6.46 The test as to the capacity of the party in question was formulated by Singleton LJ in Estate of Park; Park v Park,112 and approved by the Privy Council in Hill v Hill,113 as follows: Was the deceased … capable of understanding the nature of the contract into which he was entering, or was his mental condition such that he was incapable of understanding it? In order to ascertain the nature of the contract of marriage a man must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. Without that degree of mentality, it cannot be said that he understands the nature of the contract.114

6.47 Since the nature of the marriage contract is a simple one, the case for displacing the presumption needs to be strong.115 It is perfectly consistent with that view that a party may have been found lacking in soundness of mind for the purpose of making a will, or for other purposes, yet not of such unsoundness of mind as to require the setting aside of a marriage on this ground, as indeed was the case in Park v Park. However, the courts are not prepared to go so far as to hold that it may be possible to distinguish between degrees of unsoundness of mind. There is no ‘sliding scale of soundness of mind by reference to which different matters of which the law is required to take cognisance may be measured’.116 [page 333] 6.48 What is ‘unsoundness of mind’? There is no statutory definition of this concept in the FLA. It is suggested that the

presence or absence of unsoundness of mind must therefore be ascertained to be ‘freed from the trammels of artificial statutory classifications of insane persons’117 in accordance with such criteria as may be available to the court considering the question. Thus, it is the fact of unsoundness of mind, rather than the cause of it, that matters. 6.49 For example, although there is no binding authority for this, the view has long been advanced that intoxication at the time of a marriage ceremony may prevent a binding consent from being formed. The only authority is an obiter dictum of Sir William Scott in Sullivan v Sullivan118 to that effect, but as a matter of principle one would have expected this view to be sound in any event. Section 23B(1)(d)(iii) requires only mental incapacity and does not specify a necessary cause of that incapacity. Therefore mental incapacity induced by drug use could also be argued. 6.50 In Brown & Brown,119 McCall J, having applied Park v Park, made it clear that the question as to whether a particular person was, or was not, capable of understanding the nature and effect of marriage as at the time of entering into a marriage in question, cannot be answered by the application of any general standards. The answer must depend on an examination of the condition of the person concerned in the light of all the circumstances applying to that person at the time of entering into the presumed marriage. In Brown, McCall J specifically found that the husband, whose consent was in dispute, understood the nature and effect of the marriage ceremony as well as the effects of the marriage ceremony for himself and the person he married. 6.51 Subsequently in AK v NC,120 Chisholm J concluded that the law does not require the person in question to have a detailed and specific understanding of all of the legal consequences of marriage.121 While noting the approach taken by McCall J in Brown, Chisholm J considered that the earlier authorities contemplate that a person needs to have ‘a general understanding

of the nature of marriage and the obligations it entails rather than the more specific consequences it might have for the individuals in question’.122 His Honour concluded therefore that ‘a valid consent involves either a general understanding of marriage and its consequences or an understanding of the specific consequences of the marriage.’123 He did [page 334] not consider it necessary in the case before him to rule on whether there is an inconsistency between these two approaches. In AK v NC, the wife’s next friends (her niece and nephew) brought an application for nullity, challenging the wife’s remarriage to her former husband. The couple were in their eighties at the time of their remarriage and the wife was living in a nursing home. The next friends argued that, due to her dementia, the wife was not mentally capable of consenting to marriage. Chisholm J concluded that ‘the evidence is consistent with the wife having an understanding of marriage and its consequences, both in general and specifically for her’.124 The applicant therefore had not established, on a balance of probabilities, that the wife lacked capacity to give consent.

Party below marriageable age 6.52 Until 1 August 1991, the marriageable age was 18 years for a male and 16 years for a female. However, to bring the law of marriage into conformity with the Sex Discrimination Act 1984 (Cth), s 11 of the Marriage Act 1961 (Cth) was amended in 1991 to provide for the same marriageable age for both males and females, namely 18 years. 6.53 Under s 12 of the Marriage Act, where a judge or magistrate finds there are ‘exceptional and unusual’ circumstances, they may

make an order reducing the marriageable age of one of the parties to 16 years. Therefore, for the purposes of nullity, marriageable age means that age which applies to the person in relation to whom it has been called into question by virtue of s 11 or, if applicable, s 12. So, where a person goes through a form of marriage, and they have not attained marriageable age, or there is not currently in force an order of a judge or magistrate under s 12(2), the marriage is void.125 It is normally a question of fact whether nullity by reason of a party being under age has been made out or not.126 6.54 The rationale underlying s 23B(1)(e) of the Marriage Act — that a marriage is void if ‘either of the parties is not of marriageable age’ — was stated by Pearce J in 1951, in Pugh v Pugh:127 The ‘mischief and defect for which the common law did not provide’ was this: According to modern thought it was considered socially and morally wrong that persons of an age, at which we now believe them to be immature and provide for their education, should have the stresses, responsibilities and sexual freedom of marriage and the physical strain of childbirth. Child marriages are by common consent believed to be bad for the participants and bad for

[page 335] the institution of marriage. Acts making carnal knowledge of young girls an offence are an indication of modern views on this subject. The remedy that ‘the Parliament has resolved’ for this mischief and defect is to make marriages void where either of the parties is under 16 years of age.128

Such statements do not account for changing social mores nor for differing cultural views as to the appropriate minimum age for marriage. The recognition under Australian law of culturally diverse practices as to marriage is discussed in Chapter 5. Also, see the discussion at 5.35ff of the circumstances under which a court is likely to make an order permitting marriage below the age of 18 years.

Divorce Introduction 6.55 The FLA came into operation on 6 January 1976. It made radical changes to the Australian law of divorce. Under the Matrimonial Causes Act 1959 (Cth), which operated from 1 February 1961 to 5 January 1976, there had been 14 grounds of divorce (then called dissolution of marriage). The principle of matrimonial fault, which in 1857 first made divorce available for adultery only, had gradually been widened to include other grounds, some of which did not depend on fault. So long as fault grounds existed, and different qualifying periods of time were applied to them, the incentive to commit abuses was very strong. Adultery was committed, or even faked, because it was an immediate ground for divorce. Two-year desertion against the will of the other party was often used to avoid the need to wait the five years involved in the separation ground, which was available whether there was consent or not. In both cases, if there was consent of the other party to the arrangement, it constituted collusion which, if it became known to the court, negated the right to a divorce. Inevitably in such cases, perjury was committed by the parties. Then again, a spouse might consent to facilitate a divorce on condition of a favourable settlement. In some cases this amounted almost to blackmail. The question of guilt was of particular importance where ancillary matters were concerned, as there was a notion that public policy demanded a demonstration of public disapproval of conduct leading to divorce. Thus divorce actions in the courts often involved a jockeying for positions, and the use of grounds more with an eye to strategy than a true reflection of what had happened in a marriage.129 Perjury and other collusive practices, however, bring the law and the legal system into contempt and this does nothing to uphold respect

[page 336] in our institutions of justice. Ultimately, it also does nothing to maintain a respect for the institution of marriage. It may be that advocates of the reintroduction of fault-based divorce (see 6.2) overlook this history. 6.56 So, although the parties to a marriage were or had become incompatible, that fact was not acceptable as a ground for divorce. A pre-1975 case, Curby v Curby,130 illustrates this attitude of the law: I appreciate that conduct of a comparatively trivial nature may, as part of the general matrimonial history, be a contributing factor to cruelty or constructive desertion, but some of the matters raised by the parties in this case are of such triviality as to be completely negligible. It is perhaps fitting in such a case that the final destruction of the marriage was brought about by an argument as to the size of the slices of a watermelon cut by a daughter of the parties. The marriage of incompatibles often leads to unhappiness and violence. The unhappiness alone can affect the health of one of the parties. This does not necessarily imply that the other party has been guilty of cruelty and while the law remains as it is, the tendency to spell out a case of cruelty from such a situation must be checked.131

In Curby’s case, allegations of cruelty failed, although the petitioner did succeed on the ground of constructive desertion. The case also illustrates the former need for presenting detailed evidence of incidents and the minutiae of matrimonial disputation to support the allegations. Particularly in a borderline case, a great deal of evidence might be adduced in the hope that some of it would stick. The trial became an undignified public parade of ‘dirty linen’. Instead of allowing the parties to part from each other with dignity, it became almost inevitable in many cases that they should part on terms of the greatest hostility with relations embittered, not only between husband and wife, but also among other members of the family, including often their children.

6.57 When the FLA was introduced, its sponsor and chief architect, the Attorney-General of the day, Senator Lionel Murphy (subsequently the Honourable Mr Justice Murphy of the High Court of Australia), said that ‘an enquiry into the cause of breakdown is not proper’.132 This attitude was central to the philosophy of the FLA. The no-fault philosophy is seen most directly in the ground of divorce. It was designed so that, upon proof of 12 months’ separation, irretrievable breakdown would be prima facie presumed to exist. A divorce order would then be made as a matter of entitlement. [page 337] 6.58 These principles were reaffirmed in Marriage of Abbott,133 where the Full Court said: The components of an application for dissolution of marriage (other than the formal matters relating to marriage, jurisdiction, etc) are the separation of the parties for a period in excess of twelve months and the question of the likelihood or otherwise of a reconciliation. If a respondent puts either of those issues in contest or makes it clear that he requires the applicant to prove these matters the proceedings would be defended. On the other hand, if the respondent seeks to raise issues which are important to him or her but which are unrelated to those issues, the proceedings remain undefended. In the above analysis we have, as a matter of convenience, ignored the issue of onus in relation to reconciliation. We should add two caveats to the above. The first is that it is necessary for registrars to bear in mind that the question of divorce can be a highly personal and emotional topic and a respondent may feel entitled to ‘oppose’ the application on grounds which are unrelated to the legislation. This is particularly so in areas of religious belief, conduct, fault, etc. This must be balanced with the recognition that the Parliament has made a judgment on these matters in legislation in 1975 which removed the plethora of fault grounds and substituted the present single, no fault, ground of divorce in Australia. An applicant is not obliged to face a contest on irrelevant issues and that needs to be clearly, but courteously, explained to the respondent.134

In Abbott, the respondent husband opposed the divorce on the basis, among other things, that it was a ‘religious marriage’ made within the Catholic Church and, as such, was not capable of being

dissolved except by death. Consequently, and also in accordance with s 43(1)(c) of the FLA, he argued that the Family Court did not have the jurisdiction to dissolve marriages. The Full Court put this argument into perspective and demonstrated that the terms of the FLA did not permit arguments taken from outside the four corners of the legislation.

Irretrievable breakdown of marriage 6.59 The ground for divorce is set out in s 48 of the FLA as follows: (1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably. (2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not

[page 338] less than 12 months immediately preceding the date of the filing of the application for the divorce order. (3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

This section tells us five things: 1.

2. 3. 4.

to establish irretrievable breakdown, it is necessary to show that the parties have separated and lived separately and apart for not less than 12 months; separation for 12 months is the only method of proving irretrievable breakdown; if 12 months’ separation is proved, a divorce order must be made; unless the court is satisfied that there is a reasonable likelihood of

cohabitation being resumed; and 5.

if so, but only in that case, a divorce order must be refused. Section 48 is further qualified by s 49, which says:

(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties. (2) 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.

Separation 6.60 What does ‘separation’ mean in these provisions? In the majority of cases where parties physically separate, the facts will speak for themselves. More will be required, however, when the parties continue living under the same roof during a period that is relied on to establish separation within the meaning of s 49(2): see 6.73–6.83. In this situation, other evidence may be necessary to establish whether what is known as the consortium vitae has broken down. Unless it has, separation cannot be established. Consortium vitae (also called ‘consortium’), or ‘partnership for life’, is the marital relationship, consisting of the various incidents that go to make up such a relationship. Matters (set out in Tulk v Tulk)135 such as ‘marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and private, correspondence during separation’ are among those incidents, but they are neither exhaustive nor exclusive. For example, the importance in a given relationship of sexual intercourse will vary with such circumstances as the age and health of the parties. To argue that the absence of one of the usual incidents of a marital relationship in a given [page 339]

marriage supports an inference that that relationship has broken down will lack cogency if that incident did not play an important role in the particular marriage in question, even at a time when the marriage was a success. 6.61 In 1949, the High Court in Main v Main136 stressed the central element in consortium in the following terms: Although usually the existence of the conjugal or matrimonial relationship or consortium vitae means that the spouses share a common home and live in the closest association, it is not inconsistent with absences one from another, even for very long periods of time. It rests rather on a real mutual recognition by husband and wife that the marital relationship continues to subsist and a definite intention to resume the closest association of a common life as soon as the occasion or exigency has passed which has led to an interruption regarded by both as temporary.137

6.62 This view of the marital relationship is in accordance with early authority, manifested in decisions involving desertion and separation. Separation as such was not a ground for divorce until comparatively recently: since 1945 in Western Australia, and then under s 28(m) of the Matrimonial Causes Act 1959 (Cth) throughout Australia. However, it was always one of the ingredients in the ground of desertion, on which there is a long line of authoritative statements. A classic example is Fitzgerald v Fitzgerald138 in 1869: ‘desertion means an abandonment, and implies an active withdrawal from a cohabitation that exists.’ That statement was amplified in 1921 in Pulford v Pulford139 to the effect that desertion was ‘not the withdrawal from a place, but from a state of things’. When it is asserted that a separation has taken place, it may be necessary, therefore, to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case. 6.63 The statement in Pulford — that desertion was not the withdrawal from a place, but from a state of things, which applied equally to separation under the former law — does not mean that

a spouse leaving the matrimonial home does not constitute separation for FLA purposes. In the majority of cases, that is often what happens. The home in fact has been said to be: … the most important single component of the marital relationship … all other components are secondary to it, it is the place where the parties can together find shelter and protection, where they can procreate their children and rear them in

[page 340] such security and comfort as their circumstances dictate, where they can store, use and protect their property, entertain their friends, relax together, enjoy each other’s society and support each other in times of sickness or disaster.140

Cohabitation, in the contemplation of the FLA, is largely synonymous with consortium.141 6.64 That separation involves the termination of the consortium is further supported by the presence of s 49(2) of the FLA, which acknowledges separation may have occurred even where the parties have continued to live under the same roof, or where either has performed some household services for the other. 6.65 It almost goes without saying that the consortium can only end if that is intended by one or both parties and if one or both parties act on that intention. In the majority of cases, the facts that give rise to the inference of an intent to end the consortium, and action upon that intention, are uncomplicated and present little difficulty. In Marriage of Todd (No 2),142 Watson J put the matter succinctly when he referred to three concepts that require examination: (a) separation, (b) living separately and apart, and (c) resumption of cohabitation.143 In Marriage of Pavey,144 the Full Court of the Family Court adopted what was said by Watson J in Marriage of Todd (No 2) about what constitutes separation and stated: Separation’ means more than physical separation — it involves the breakdown of

the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or other 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.145

[page 341] 6.66 Concerning the first concept, where a case does not involve a physical separation, intention must be carried out ‘overtly, unequivocally and specifically’.146 Intent, and acting on that intent, are thus essential ingredients in separation. In the great majority of cases, these elements will be clear from the circumstances. The objective of the FLA to dispense with humiliating inquiries into marriage breakdown may be achieved in many situations, but breakdown can manifest itself in different ways. It may be in the mind more than in the physical setting of the relationship. Where there is little or no evidence of physical separation, it may be necessary to find other evidence that the marriage has broken down. That evidence may lie in the actions, deeds and thoughts of both parties or of one of them; for example, moving out of a shared bedroom into a separate room. Since the overriding policy of the divorce provisions of the Act is the termination of marriages that have broken down irretrievably, other considerations may have to give way. It has been well said that it takes two people to make a marriage, but only one to break it. So if one of the parties to a marriage has reached a point where the marriage has broken down for him or her, then the fact that the other party does not share that point of view, or is even unaware of it, cannot negate the breakdown. Further, the first party’s view that the relationship has broken

down does not necessarily have to be communicated to the other.147 The problem in such a case may be an evidentiary one of establishing that the marital relationship has been severed and the court may require corroboration in certain cases: see also the discussion at 6.81 as to why corroboration may be crucial.148 It is also legally irrelevant if the separation has been brought about by the actions of the applicant for the divorce.149 6.67 As to the second concept referred to by Watson J (living separately and apart), this can be satisfied by separation unless there is a substantial resumption of the marital relationship. Casual acts of sexual intercourse do not necessarily constitute an interruption or ending of the separation, but are a factor to be considered.150 Equally, an agreement to resume cohabitation that is not carried out is insufficient. Just as intention and action are ingredients in the element of separation, so are intention and action necessary ingredients in the resumption of cohabitation. [page 342] 6.68 In Marriage of Clarke,151 the question of what is needed to end separation was considered. The Full Court held that resumption of cohabitation must consist of a mental element (an intention to resume the relationship) and an overt action (such as a physical resumption of cohabitation). In so holding, the court followed Marriage of Todd (No 2): see 6.65. In the judgment of Lindenmayer J, with which Fogarty and Nygh JJ expressly agreed: … once a state of ‘separation’ (that is non-cohabitation) is shown to have existed between spouses, it must continue until brought to an end by acts of the spouses sufficient to constitute a restoration of the marital relationship, that is a resumption of cohabitation. As a cessation of cohabitation involves both a physical and mental element, resumption of cohabitation must also involve both of those elements, that is an intention to resume the marital relationship and a physical coming together of the parties, or at least some overt action on their part to carry their intention into effect.152

In this case, the parties had separated, resumed cohabitation for seven days after nine months and then parted again. Twelve months later the husband had obtained a decree nisi (now called a divorce order), but before the decree became absolute (ie took effect), the parties successfully applied for a rescission of the decree under s 57 of the FLA on the ground of a reconciliation having taken place. The parties resumed cohabitation shortly afterwards, but separated again after five weeks. The husband then filed a fresh application for divorce relying on the date of the separation that had occurred after the first (seven-day) resumption of cohabitation. The judge at first instance dismissed the application, distinguishing between the ‘trial resumption’, which s 50(1) of the FLA contemplates and which that section provides does not terminate the separation (see 6.86–6.87), and a reconciliation which brings separation to an end. It was this finding that caused the Full Court to consider what is required to terminate separation. In relation to the case at hand, the Full Court held unanimously that s 50(1) permitted short periods where separation would, but for that section, be considered to have ended, and there was no reason the husband should not be allowed to avail himself of the benefit of that provision. The appeal was therefore upheld. The Full Court’s conclusion as to the requirements for the termination of separation finds support in the elements of separation as used in the FLA and seen in the separation of the physical and mental elements in, for example, separation under the same roof in s 49. Thus, one or other of these elements may be present, without constituting consortium. The decisions in Todd (No 2),153 Marriage of Pavey154 and Marriage of Falk155 were cited in support of the analysis. [page 343]

The judgment goes on to examine the concept of ‘reconciliation’ as it occurs in the FLA. The Full Court concludes that to say that a couple has reconciled does not necessarily mean that they have resumed cohabitation in the legal sense. 6.69 One situation where proof of the parties’ intention is crucial is a separation in circumstances in which the marriage has not broken down at the time of physical separation, but it breaks down subsequently. Physical separation may be consensual where, for example, a party goes away on business or into hospital, but it is intended by both parties that after a period of separation they will be reunited. The separation may similarly occur by compulsion; for example, where a party is sent away from home to prison or on military service. As long as the common intention to reunite subsists, Consortium has not been broken, but if, during the physical separation, an intent to separate on the part of one of the parties — or of both — supervenes, then separation in law will come into existence from that point in time.156 Much depends, however, on whether the actions of the separating party are sufficiently unequivocal so that the intent to separate may be inferred. If not, some reliance may have to be placed on a communication of the intent. That communication need not be verbal, but may be inferred from the circumstances.157 6.70 Communication to the other party of an intention to separate will normally be required. In Marriage of Falk,158 the Full Court said: Where one party only has formed the relevant attitude and intention they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.159

This judicial statement was made in a case where the parties had continued to live separately under the one roof. The need for clear evidence of separation is particularly pertinent in these cases and courts have been very wary of parties trying to evade the

mandatory separation period. It is arguable that the Full Court was only reiterating the need to act on an intention to separate rather than stipulating communication as a separate requirement to be satisfied. A party to a marriage cannot decide to separate, but then keep their intention hidden ‘[w]here other aspects of the relationship continue’. In such a situation, the party would not be able to prove they had acted on their intention. [page 344] This interpretation of Falk is not only consistent with other early decisions in this area,160 it is also precisely how Wilczek J summarised a long line of separation cases in Marriage of Batty:161 [W]hat is required therefore is that an intention (by at least one spouse) to bring the consortium vitae to an end be established and that there has been a sufficient implementation of that intention (animus et factum) … The communication by one spouse to the other of the intention formed by the spouse to bring the consortium vitae to an end can be one way of implementing the intention. (original emphasis)162

Such an interpretation is also consistent with the cases where physical separation occurs in equivocal circumstances (eg hospitalisation, imprisonment, overseas posting, etc.). For example, in Marriage of Whiteoak,163 the husband was imprisoned in November 1978. The wife continued to visit him until the following March, when she stopped seeing him. She also communicated to him her intention not to continue in the marriage. The court accepted March 1979 as the date of the separation. In Marriage of Tye (No 1),164 the husband left for a job in Singapore telling his wife he would send for her. His evidence was that on arrival he discovered the job was for a single man and so he formed the intention to separate from his wife. He advised her of this by letter nearly two months later, but in his application for divorce he relied on a date midway between his departure and the

letter to his wife. Emery J found that the husband had formed his intention to abandon his wife when he left Australia (he was not persuaded the husband was unaware of the terms of his new employment). The husband’s application was therefore successful as his Honour had no doubt that one party could unilaterally terminate the consortium without communicating this to the other party. Whereas in Whiteoak the action on the intention to separate was the communication of this fact to the husband, in Tye the husband’s action on his intention to separate by leaving the wife, albeit under false pretences, was sufficient. In Batty,165 Wilczek J highlights the unfortunate potential for deception in cases like Tye. In such cases, where there has been physical separation but no contemporaneous, or later, communication of the intention to separate, it will depend on the evidence as to whether the applicant can establish the intention to separate was formed at the time alleged and whether the applicant has acted [page 345] on that intention. Consider Marriage of Spanos,166 where the husband left the wife and formed a de facto relationship with another woman, with whom he jointly purchased a home. They had become partners in business and she had become pregnant to him. When the husband filed for divorce, the wife opposed the application on the ground that they had not been living separately and apart for the relevant period because: (a) they had had frequent acts of sexual intercourse; and (b) the husband had said he intended to return to her. The trial judge accepted this evidence and refused the application for divorce. However, on appeal, Evatt CJ, Fogarty and Maxwell JJ found that, even if the husband had behaved as alleged, this did not change the fact that the parties were living separately and apart.

Nonetheless, by reference to the passage in the Full Court’s decision in Falk set out above, communication is often referred to as a necessary element of separation.167 Certainly it will be open to a court to conclude, in the absence of communication of an intention to separate by words or actions, that the consortium has not been severed. Arguably, the same conclusion could be explained by reference to the need for intention and action, as suggested by the Full Court’s decision in Marriage of Spanos. Otherwise, successful deception and the absence of communication run the risk of leaving one party with no proof that the other party formed an intention to separate or acted on that intention. Take, for example, the unreported decision of S & S,168 where the husband went to work overseas and the wife claimed separation some three months before the husband said he was told of the wife’s intention to separate. In this case, it was found that the wife had not formed an intention to separate at the time she alleged and this was supported by clear evidence of the continuation of the consortium. On the facts, it seems most likely that the wife was keeping up the appearance of the marriage, with holidays and the like, while forging a new relationship. The first clear step that evidenced either intention or action on that intention was when the wife left the home, at about which time she also informed the husband of her intention to separate from him.169 In this case, even if the wife had secretly formed the intention to separate from her husband when he left, she had done nothing to establish she had acted on that intention. 6.71 Questions concerning intention and what constitutes separation have arisen in cases in which one of the parties to the marriage has lost their mental capacity to make and carry out decisions, including the decision to separate and apply for divorce. In these circumstances, proceedings in the Family Court will [page 346]

need to be conducted by a case guardian pursuant to the Family Law Rules 2004 (Cth). In their joint judgment Price v Underwood (Divorce Appeal),170 Boland and Ryan JJ commented on this development: Not surprisingly, given the aging demographics of the Australian population, and increasing incidence of dementia necessitating nursing home care (see Australian Institute of Health and Welfare 2008, Australia’s Health 2008, Cat No AUS 99, Canberra: AIHW, at [216]–[218]), the Family Court and the Federal Circuit Court have, in recent years, dealt with applications brought by case guardians seeking either divorce orders or a decree of nullity where one party to the marriage is suffering mental incapacity. These cases throw into sharp focus what we perceive to be the crucial element in considering whether a case guardian can bring an application for divorce for the disabled party. That is, can the case guardian establish that a party to the marriage had the requisite intention to bring the marriage to an end? (original emphasis)171

Their Honours noted the conclusion reached by Dessau J in Marriage of Jennings172 that the intention to sever the marital relationship cannot be formed by a person appointed as administrator for an incapable person. This view was subsequently adopted and applied to an application for divorce.173 In Price v Underwood, there was no need to decide the correctness of that view because in that case their Honours were satisfied on the evidence that the husband had formed an intention to bring the marriage to an end and had communicated that intention to his wife before he became incapable of conducting the proceedings for himself. Boland and Ryan JJ concluded that the Family Law Rules permit a case guardian to bring an application for divorce in these circumstances. Further, if the case guardian can lead evidence that proves the respondent has demonstrated the requisite intent, and lived separately and apart for the requisite period, that evidence can be relied on by the case guardian acting on behalf of the applicant disabled person for a divorce order. Of course in the absence of evidence to satisfy the court that the marriage has irretrievably broken down, the application by the case guardian for divorce will be ‘nugatory’.174 A similarly important question, in view of the number of elderly

people suffering dementia, arose in Marriage of Jennings. In this case, the question was whether property proceedings could be brought on behalf of a party to a marriage who had become mentally incapable and who was living separately from their spouse [page 347] due to their need to be hospitalised or to live in special care accommodation. It is clear from the judgment of Dessau J in Jennings, two subsequent decisions of the Full Court175 and the decision of the High Court in Stanford v Stanford176 that physical separation due to ill health, in the absence of evidence that either party intends to sever the marital relationship, does not constitute separation as defined in Marriage of Pavey177 and Marriage of Falk.178 Significantly, the High Court held in Stanford v Stanford that the court has jurisdiction to make maintenance and property orders under the FLA even though the parties have not separated: see 10.18 and 12.34–12.35. 6.72 One ingredient of divorce is the requirement that the separation has existed for a full 12 months. To establish that period has run its course before an applicant can become entitled to a divorce order, it is important to have regard to: (a) the date on which separation is alleged to have occurred; and (b) the date on which the application is filed. In Bozinovic & Bozinovic,179 the application failed because the full period was not complete. It was a simple matter of computation. The application, which was filed on 14 August 1989, stated that separation occurred on 14 August 1988. Since the application had been filed on the first anniversary of the date of separation, the key question was whether or not the date of separation was to be included in the period of the 12 months referred to in s 48(2) of the FLA. After referring to s 36 of the Acts

Interpretation Act 1901 (Cth) and Halsbury’s Laws of England on the computation of time, Kay J held that the continuous period of 12 months separation referred to in s 48 had to precede the date of filing the application. Therefore, the application can first be filed the day after the anniversary of separation.

Separation under the same roof 6.73 It has already been pointed out that separation may be established, even though the parties have continued to live under the same roof. Section 49(2) of the FLA now expresses the same principle, but long before there was any direct statutory support for that proposition, the courts had acknowledged the possibility of such a situation. Indeed, in one sense it is only a logical development of the proposition in Pulford v Pulford180 that desertion is the withdrawal not from [page 348] a place, but from a state of things. Having laid down that proposition, the law was launched on a development that pointed to desertion as a legal fiction, with divorce for incompatibility as the ultimate solution to marital disintegration. In the evolution of the law of marriage, such a development was logically almost inevitable. Given that marriage is based, and can legally only be based, on the free consent of both parties, once the consent of even one of them is withdrawn, the basis for marriage disappears. The difficulty was always the need to uphold the family, and to provide for children and the economically weaker partner of a broken marriage, usually the woman. 6.74 The notion of separation under the same roof was thus hedged with restrictions, requiring it to be clearly demonstrable. In the UK, a test was evolved by the Court of Appeal in Hopes v

Hopes181 which became known as the ‘two households’ test. The test was applied in desertion cases to establish whether there had been separation, an essential ingredient of desertion. According to the test, separation could exist where two spouses had continued to live under the same roof, if there were ‘such a forsaking and abandonment by one spouse of the other that the court can say that the spouses were living lives separate and apart from one another’.182 The two households test proved to be rigid and unrealistic; it failed to reflect the relationship between former partners to a marriage who were not necessarily bitter enemies. When two people live in the same house where they cannot help seeing each other from time to time, it is unusually artificial for either of them to pretend the other does not exist. This is especially the case where the couple has children living in the same house. The test, when applied to the facts in Hopes v Hopes, resulted in a finding that desertion had not taken place. 6.75 The Australian approach, on the other hand, shows that it is possible, even in the adversarial litigation process, to arrive at a closer approximation to the question of marriage breakdown than the two households test allows. 6.76 At first, in Main v Main,183 the High Court took the (obiter) view that: … physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof.184

6.77 Three years later, however, the High Court in Watkins v Watkins185 recognised separation under the same roof in circumstances that would have been insufficient [page 349]

under Hopes v Hopes. The judgment shows that the court was willing to examine the circumstances of those elements of cohabitation that had remained between the parties. Such an exercise showed that, far from suggesting a remaining commitment to the marriage, the circumstances supported the conclusion that the marriage had broken down, and that there was a rejection by the respondent husband of the appellant as his wife. Consequently, ‘the mere fact that he stayed in the house did not, in all the circumstances, keep alive the conjugal society of these parties’.186 This was followed by other cases in which the High Court recognised the matrimonial relationship to have been destroyed without relying on a notion of two households.187 6.78 In 1961, when the Matrimonial Causes Act came into operation and introduced separation for five years as a ground for divorce, the courts continued to have regard to the elements of consortium and to the circumstances of the parties when determining whether they were living separately and apart.188 In Crabtree v Crabtree,189 the parties only remained living under the same roof so as not to harm the husband’s political career. In Morris v Morris,190 Nettlefold J reviewed and clearly articulated the approach of the Australian courts in these cases prior to the FLA. After reciting some of the important elements of consortium, following what had been said on this point in Tulk v Tulk191 (see 6.60), Nettlefold J went to the essence of the question: ‘It is not a question as to whether there was one household or two households; rather it is a question as to whether there was a real sharing of a common life.’192 6.79 With the introduction of the FLA, the courts continued the same line of interpretation that had been developed in relation to separation, and the separation element in desertion. In one of the first cases to be decided under the new Act, Marriage of Wiggins,193 Watson J followed Crabtree v Crabtree and Morris v Morris in equating irretrievable breakdown with severance of the

consortium. The same judge, in Marriage of Todd (No 2),194 elaborated further on the matter, again to the same effect. [page 350] A definitive statement on the interpretation of ss 48 and 49 of the FLA was given by the Full Court of the Family Court of Australia on 15 June 1976 in Pavey.195 The court expressed its broad agreement with some of the above authorities. It agreed with the reasoning of Watson J in Todd (No 2) that separation means more than physical separation. The Full Court accepted Watson J’s view that separation involved the destruction of the consortium, preferring, however, to describe that event as breakdown rather than destruction, because of the fault-related tenor of the word ‘destruction’. It also agreed with the proposition that ‘what comprises the marital relationship for each couple will vary’, and that in consequence, the court had to look at the question of breakdown of any given marriage in perspective, comparing that marriage in a state of alleged breakdown with the same marriage before it had broken down. The Full Court in Pavey approached the ‘checklist’ of elements that go to make up the consortium that was used in Todd (No 2) (see also Tulk v Tulk and Morris v Morris) and added a further element — namely ‘the nurture and support of the children of the marriage’196 — because this was clearly one of the common duties of both husband and wife, springing from the marital relationship and being central to it, as well as being an obligation recognised under the FLA. 6.80 The Full Court dealt at some length with the question of breakdown of marriage under the same roof because it was necessary to give an authoritative determination, and to correct a mistaken supposition to which s 49 had given rise. This was the

belief that s 49 could be used as an easy ‘quickie divorce’ ground, whereby 12 months’ separation under the same roof could be alleged even in cases where the parties had only just become estranged, by pointing to s 49(2) and representing the cohabitation that had taken place as a case of merely having performed some household services for one another while being separated under the same roof. In dealing with what constitutes separation between two parties to a marriage who continue to reside in the same residence, the Full Court in Pavey made clear: In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage is broken down, for the common residence suggests continuing cohabitation. Such cases therefore require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation.197

[page 351] To discharge the onus of proving separation the Full Court adopted as appropriate the standard of proof laid down by the High Court in Briginshaw v Briginshaw198 and quoted Dixon J in that case: … when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to infinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal … But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether

the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.199

6.81 Accordingly, it was not sufficient simply to allege the breakdown of a marriage where the parties had remained under the same roof. Such a situation, without more, raised a presumption of a stable marriage. That presumption was the stronger where some of the incidents of consortium, such as the performance of household services, were still present. In such a case, the onus was on the party alleging separation to explain why the parties had continued to live under the same roof. It was necessary to show how their relationship had deteriorated and how consortium had ceased. Judges of the Family Court of Australia had required corroboration in such cases. The Full Court did not wish to lay down an inflexible rule to that effect, but suggested that a party in such a case should always be prepared to provide such corroboration if required. In the unreported case of Wilson v Wilson,200 Lapthorn FM applied the Briginshaw standard of proof and concluded that the husband had failed to show that the parties had been separated for the requisite 12 months before filing an application for divorce. 6.82 One of the factors which the court had regard to in Pavey’s case was whether or not the parties had stayed together because of the children, when it [page 352] was understood their relationship had in other respects ceased to be a viable one. In other words, it was looked upon as a possible indication that the relationship had not been completely severed. In Marriage of Falk,201 the Full Court further refined this concept and drew a distinction between the parties staying together for the sake of the children and the parties remaining in the matrimonial

home for the sake of the children. The importance apparently lies in the expression that the parties have ‘stayed together’, as distinct from one of them having ‘remained behind’. The former implies an element of mutuality in not severing, as it were, the one remaining thread by which the marriage might be regarded as still hanging together. The latter indicates an absence of any consensus or mutuality that might have pointed to a continuing commitment to a marriage or an important part of it. Separation, for the purposes of the FLA, may generally be regarded as the antithesis of cohabitation. Thus, separation may be said to begin where cohabitation ends. 6.83 A number of early cases considered varying household arrangements in the context of separation under one roof, with mixed results. In Marriage of Hunt,202 the parties simply could not afford to live separately and the husband came home at weekends, living at his place of work during the week. The parties slept in separate rooms, did not eat together and the husband did all his own household chores. The end of the consortium was accepted with no corroborative evidence. In Marriage of Hodges,203 the divorce was granted in circumstances where the couple slept separately but the wife cooked and washed for the husband. Pawley SJ held that the provision of some household services by the wife for the husband did not alter the fact that the parties had separated. However, in Marriage of Caretti,204 the husband’s application for divorce was unsuccessful where, for the 18 months prior to the separation, the parties shared the same bed (though there were no sexual relations). This was despite the parties being in negotiation over property settlement, the husband having sought legal assistance to force the wife out of the home and the wife refusing to attend certain social functions, a strong indicator of marital breach in their Italian community.

Reasonable likelihood of cohabitation being resumed

6.84 Even after 12 months’ separation, a divorce order will not be made if the court is satisfied there is a reasonable likelihood of cohabitation being resumed: s 48(3). Under the FLA the onus of proof is on the person seeking to show this likelihood exists,205 unlike under the Matrimonial Causes Act 1959 (Cth), where the onus was reversed. In the absence of evidence being advanced by either [page 353] party, a court is unlikely to be satisfied that there is a reasonable likelihood of cohabitation being resumed. Nevertheless, if the court is satisfied of this fact based on the evidence before the court, it must refuse to make a divorce order. 6.85 On the other hand, the court will not simply accept a claim by a respondent who opposes the making of a divorce order that there is a reasonable likelihood of cohabitation being resumed. The court will investigate the matter for itself: Bates & Sawyer.206 In this case, the husband appealed to the Full Court against a divorce granted on the wife’s application. The Full Court did not accept the husband’s contention and dismissed the appeal. In doing so, the Full Court held that the onus of proving the existence of a reasonable likelihood rested on the party asserting it, but the court did not go so far as to require a bilateral intention on the part of both spouses to resume living together. The wish of one spouse, and an equivocal attitude on the part of the other, could be sufficient. That, however, was not the case here. Where there is in fact evidence pointing to a resumption of cohabitation after the institution of proceedings but before the hearing, the court is bound to inquire whether there is a likelihood of cohabitation being resumed — a matter which it does not normally have to investigate. The circumstances should therefore be brought to the court’s attention.207

However, where there were six or seven casual and intermittent acts of intercourse between the parties with no other relevant evidence, it was held in Marriage of Feltus208 that there had been no resumption of cohabitation.209 A resumption that brings a state of separation within s 48 to an end must involve an intention to resume the marital relationship, as well as a physical coming together.210

Duration of separation 6.86 The period of separation for the purposes of s 48 must be a continuous period of at least 12 months. There is one exception to the requirement of continuity. That exception is found in s 50 of the FLA: (1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they

[page 354] were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart. (2) For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.

This section is the latest form of the ‘kiss and make up’ clause which was first introduced in the UK by the Matrimonial Causes Act 1963 (UK). The UK provision was the model for s 41A of the Matrimonial Causes Act 1959 (Cth).211 It was designed to promote reconciliation and to encourage separated spouses to resume cohabitation. Where desertion or separation had taken place, and the requisite two- or five-year period had begun to accrue, that fact

created a strong incentive against bringing that period to an end by a resumption of cohabitation. The ‘kiss and make up’ clause was designed to overcome this disincentive and to create the possibility for such an attempt at reconciliation. Its effect was that if the reconciliation did not work, the parties could part again within the permitted threemonth period. In that case, the period of desertion or separation would continue to run. It would be complete when a two- or fiveyear period resulted from aggregating both the period before and the period after the resumed cohabitation, excepting from it only the period of that resumed cohabitation itself. The provision was undoubtedly a step forward, but it did not go far enough. To be effective, three conditions had to be strictly observed. First, only one such attempt at reconciliation was allowed. Second, the cohabitation had to be with a view to effecting reconciliation and, third, it had to fail in that objective. If reconciliation did in fact result, however short-lived, and the parties subsequently separated again, the period of separation had to start all over again. If the ‘trial cohabitation’ lasted longer than three months, again the period of separation before the cohabitation period could not be used in computing the total period of separation, and if there were two periods of cohabitation, the clause was inoperative. Furthermore, if reconciliation were followed by a period of cohabitation, the clause did not apply. 6.87 Under the FLA some of these objections have been removed, though there can still be only one such attempt. In Keyssner & Keyssner,212 there had been three separate acts of resumption. Although in the aggregate they totalled less than three months, the section allowed only one such act and the 12 months’ separation period had to begin afresh. The period of cohabitation must not exceed three months and any minor interruption does not impair continuity of the period: s 50(2).213 However, under s 50(1), the resumption of cohabitation need

[page 355] not be for the purpose of reconciliation and then fail in that purpose. Rather, it is clear that during this period the separation must have ended. Otherwise, it would not be a resumption of cohabitation, which is a resumption of the marital relationship. Thus, the distinction between reconciliation (which may simply mean returning to a friendly state) and resumption of cohabitation discussed in Marriage of Clarke214 (see 6.68) is not relevant (for these purposes at least). The easing of the ‘kiss and make up’ clause, added to the improved facilities for reconciliation under the FLA, may be of some assistance in encouraging spouses whose marriage has broken down to attempt a reconciliation.

The two-year marriage — s 44(1B) and (1C) of the FLA 6.88 With the introduction of the FLA, the law of divorce has been freed from a number of bars, mandatory or discretionary, which used to exist in the law of matrimonial causes. The only remaining restraint on the right to a divorce for parties who have been separated for 12 months is where the marriage has been in existence for less than two years. Before the Act was amended in 1983, s 14(6) provided that in such a case, the court should not hear the proceedings unless it was satisfied that the parties had considered a reconciliation with the assistance of a marriage counsellor, or there were special circumstances for dispensing with this requirement. This provision was aimed at preventing hasty, ill-considered applications for divorce where the parties might not have given their marriage a sufficient chance of working. Unfortunately, the wording of the subsection gave rise to some unsatisfactory and conflicting interpretations.

The 1983 amendments radically reworded the provision, as well as relocating it to s 44(1B) and (1C), since it was evidently considered to be more appropriate that it should appear in Pt V of the FLA, dealing with jurisdiction and the institution of proceedings. Section 44(1B) now provides that an application for divorce shall not, except with the leave of the court under s 44(1C), be filed within two years of the date of the marriage without an accompanying certificate, as prescribed by the Family Law Rules 2004 (Cth), stating that the parties have considered a reconciliation with the assistance of an appropriate counsellor or organisation. 6.89 These two subsections were considered by Asche SJ in Marriage of Kelada.215 This case disclosed an anomaly that was not covered by the statute. The applicant, who had been married a little over 14 months, filed an application for dissolution without the requisite certificate under s 44(1B). As his affidavit clearly showed, however, the parties had considered a reconciliation as required by the subsection. In these circumstances the court had no discretion to dispense with the filing [page 356] of the certificate, although under s 44(1C) a discretionary dispensation of the requirements would have been possible if the parties had not considered a reconciliation at all. It might have been expected that the provisions would subsequently have been amended to cater for this kind of anomaly, but this has not occurred. Now that attention has been called to the problem, however, members of the legal profession are no doubt more vigilant to avoid such an oversight. The application in Kelada had to be dismissed, but the judge permitted

the applicant to file the certificate required by s 44(1B) and granted the divorce.

Divorce orders 6.90 Until 2005, the appropriate court order upon a successful application for divorce was a decree. The traditional method of dealing with divorce was to grant a decree nisi in the first place. This was a provisional decree and did not become effective until it was made absolute. The Family Law Amendment Act 2005 (Cth), which replaced the phrase ‘dissolution of marriage’ with ‘divorce’, also replaced dissolution ‘decrees’ with ‘divorce orders’.216 It appears this change in terminology was not intended to make any substantive change to the law, but rather to move to a plain English description of the process, particularly in light of the large number of self-represented litigants in family law.217 In the following discussion, therefore, it is necessary to continue to consider the case law relating to decrees for dissolution of marriage.

When divorce order takes effect 6.91 In keeping with the provisions it replaced, s 55 provides that a divorce order becomes effective one month after the order is made or when the necessary s 55A order is made (see 6.97–6.102), whichever is the later. The time at which the divorce order is to take effect can be extended or reduced (s 66(2)), and provision is made for an extension of time where an appeal is instituted: s 66(3). In Jamine v Jamine (No 2),218 Finn J made an order under s 66(2)(a) extending the time for a divorce order to take effect pending the outcome of the application for special leave to appeal to the High Court. The order was made (notwithstanding the provision in s 66(3)) to avoid any doubt that the time at which the order would come into effect had been extended until after the

High Court had determined the special leave application. In Price v Underwood (Divorce Appeal),219 the Full Court upheld the trial judge’s decision to reduce the time for a divorce order to take effect so that [page 357] the divorce was final immediately. The circumstances were that an earlier divorce order sought by the husband has been set aside following a successful appeal by the wife. At the time the subsequent divorce order was made, there was medical evidence before the trial judge as to the husband’s imminent death. The husband died the day after the divorce order was made. During the period after a divorce order is made, but before it takes effect, the parties are in a marital ‘limbo’. The marriage is effectively brought to an end by the divorce order, but it continues to subsist ‘as a mere technicality’.220 However, until the divorce order becomes effective, neither party can remarry. To attempt to do so would result in the second marriage being a nullity and could render the party concerned liable to a prosecution for bigamy. 6.92 The purpose of the interval between the two decrees was chiefly to enable cause to be shown why the decree should not be made absolute because the decree nisi had been obtained by collusion or other unlawful practices. The system was introduced in the UK in 1860, only three years after the Divorce and Matrimonial Causes Act 1857. At that time, the period between the decree nisi and decree absolute was three months (extended to six months in 1866), with a discretionary power in the court to abbreviate the time in special circumstances. The time interval also provides opportunity for an appeal to be brought.

6.93

Section 93 of the FLA says:

An appeal does not lie from a divorce order after the order has taken effect.

In Marriage of Spratley,221 Watson J applied s 93 and refused to allow an appeal against a decree absolute, following the decision in Brennan v Brennan.222 In Brennan, the High Court held that ‘a decree absolute, however irregularly it may have been obtained, is valid and effective to dissolve the marriage and cannot be set aside’.223 In Spratley, a man sought to appeal out of time against a decree absolute that had been made, followed by orders transferring his interests in two houses to his former wife. He apparently had not been aware of his wife’s divorce proceedings against him and was seeking a divorce on his own account before he became aware of the decree and the property orders. Watson J’s view was: In my opinion sec 93 means precisely what it says — a decree absolute is not appealable. If it came about because of a fundamental absence of jurisdiction it may be a nullity and the proper way to test it is under sec 113.224

[page 358] Spratley came before the court again in Spratley & Spratley (No 2),225 when the husband applied to have the decree of dissolution declared invalid under s 113 (see 6.106), which at that time referred to dissolution of marriage, rather than divorce. The husband failed on the basis that once the decree became absolute, it was valid. The court again relied on Brennan. 6.94 There are, nevertheless, some circumstances in which a decree absolute has been set aside. In 1983, the Full Court had to consider the question in Marriage of Miller.226 The Full Court held that a decree absolute can be impeached in appropriate circumstances. In so holding, the court did not follow the High Court in Brennan.

In his judgment in Marriage of Miller, Fogarty J examined a number of authorities, including some UK decisions, and extracted the following principles: (1) Once a decree nisi has become absolute no appeal lies against that decree: see s 93. (2) Section 56 is an administrative and evidentiary provision and makes the certificate of decree absolute admissible (but not conclusive) evidence of the matters stated in that certificate. (3) In limited circumstances a court may set aside a decree of divorce notwithstanding that it has become absolute or it may be treated or acted upon by the parties as a nullity. (4) The fundamental problem is the circumstance in which this is so. This is because there is a basic conflict between: (a) the policy that a decree absolute should be inviolate and not open to subsequent challenge; and (b) the right of a court of record to set aside its orders where there has been a fundamental miscarriage of justice.227

The facts were that Stanley Miller had married Vera Mellor in 1948. In 1958, a decree nisi for dissolution of that marriage was issued, but was never made absolute. Then, in February 1959, Stanley Miller purported to marry Mollie Wells. Subsequently, in April 1967, he purported to marry Margaret Miller, the respondent in the present case. Stanley Miller then applied for, and was granted in 1979, a dissolution of his last purported marriage. The question (which arose incidentally to property proceedings) was whether the purported marriage between the applicant Stanley Miller and the respondent Margaret Miller was void. If so, there was, of course, no marriage to dissolve. If that was the case, then what of the decree absolute purporting to dissolve the purported marriage? There clearly had to be a way out of the impasse, for it would have made a nonsense of the legislation if, on a strict reading of s 93, the court [page 359]

could not have dealt with a decree that should not have been made because there was no marriage to dissolve. One answer might have been for everyone to ignore such a decree as a nullity, but that would not have sat well with the principle that the decrees of the court should be given proper recognition and not be ignored. Fogarty J, with whom Evatt CJ and Asche J agreed, explained his view that a divorce order is impeachable in some circumstances in the following terms: It appears to me that notwithstanding the legislative scheme in the Family Law Act there are limited circumstances in which such a decree is void or may be impeached upon that basis. For relevant purposes the authorities suggest those circumstances may fall into three categories: (a) A failure to comply with legislative requirements which are conditions precedent to the decree nisi becoming absolute. This is a particularly apt category in England because of the legislative scheme by which, in effect, the decree nisi is not to become absolute save on application to the Registrar (or Court) and upon satisfaction that certain legislative conditions precedent relating to financial provision and welfare of children have been completed. A number of English cases need to be understood in this context. It seems to me that the only equivalent provision in the Family Law Act is the necessity for there to be a declaration under s 63 (now 55A) before a decree nisi may become absolute. (b) Where there was an absence of an element fundamental to the granting of the decree. For example, the absence of any marriage to dissolve, the absence of any jurisdictional connection by either of the parties to the Court which granted the decree, or constitutional limits in Australia … (c) Where there has been a procedural irregularity which has caused a denial of natural justice. For example, where there has been no service of the proceeding and no order dispensing with service (as distinct from some defect in service or where there was an order dispensing with service which is later treated as having been inappropriately made). (emphasis added)228

6.95 In Marriage of Wardale,229 the appeal was against a decree that had been made absolute, but should not have been. A decree nisi had been made on a husband’s application, but there was also a declaration by the judge that he was not satisfied under s 55A that proper arrangements had been made for the welfare of the children. By virtue of that section, the decree could not become

absolute unless or until the court was so satisfied. A registry error caused a decree absolute to be issued in spite of the absence of the s 55A declaration. The wife then applied for the decree to be set aside or declared a nullity. [page 360] The husband’s solicitor realised the error, but apparently did not inform the husband of the decree absolute — consequently he had no instructions from his client on this matter. Bell J was faced with the strong statement in Brennan’s case. However, he was able to distinguish that decision since it was made under the Matrimonial Causes Act 1899 (NSW), which had different provisions and did not make the issue of a decree absolute dependent on a declaration regarding the welfare of the children. There was the further point that the New South Wales decree absolute was dependent on a judicial decision, whereas under the FLA it was a simple administrative act of a registrar. Accordingly, Bell J declared himself satisfied that the decree was a nullity. Here, the declaration was made under s 113. The overriding reason was the welfare of children. It is interesting to speculate whether the outcome would have been the same had the husband known of the decree absolute and altered his status by entering into a new marriage. 6.96 The question surfaced again in Cross & Cross,230 a decision of Kay J. The judgment summarises the decision in Miller and concludes: In my view, notwithstanding the rather rigid formula of the High Court in Brennan’s case, a decree of dissolution of marriage which has become absolute and which has been irregularly obtained may be impeached in appropriate circumstances. I am further fortified in this view by the decision of Bell J in Wardale.231

Although judicial opinion is settled that an appeal under s 94

does not generally lie once a divorce order has become final, opinion remains divided over whether an order may be treated or acted on by the parties or by a court as a nullity even though it has not been formally set aside. This question arose in Price v Underwood (Divorce Appeal).232 In that case, the husband filed an application for divorce in December 2007. The wife successfully appealed to the Full Court against a divorce granted pursuant to that application by orders made by a federal magistrate in April 2008 and had the divorce order set aside.233 A divorce application was again filed on behalf of the husband in the Family Court of Australia, and on 16 April 2008 a trial judge made a divorce order. The trial judge ordered that the husband’s daughter, Ms Underwood (a solicitor), be appointed case guardian for the husband. The trial judge also reduced the time for the order to take affect so that the marriage was dissolved immediately. The husband died the next day. The wife appealed against all the orders made. [page 361] One issue before the Full Court was whether, despite the provisions of s 93, the court has power to set aside a final divorce order or whether the only relief available is a declaration that the divorce order is void. The majority, consisting of Boland and Ryan JJ, set out in their joint judgment the authorities and academic commentary and summarised the effect of the legislation and the authorities as follows: A divorce order which has taken effect (‘a final divorce order’) is generally to be regarded as inviolate particularly if relied upon by third parties. Section 4(1) provides specific power to make a declaration in respect of a divorce order. The provision is not limited to overseas divorce orders or decrees. If a final divorce order has been made, a declaration as to its validity may be sought under s 113. Section 113 does not itself enable the court to make consequential orders if the court finds a final divorce order invalid, but the court, albeit a creature of statute,

may make necessary consequential orders (to set aside the divorce order) as part of its implied powers to control its own processes. The ratio in Brennan should be read in context of the facts which pertained in that case, the specific legislation (s 28) and with some reservation, because of the High Court’s discussion of the English Authorities. A final divorce order will be void if there is a fundamental flaw in the exercise of jurisdiction — where the flaw is fatal to the validity of the decree. If the facts on which a party seeks a declaration that a final divorce order should be set aside suggest the divorce order is voidable, the divorce order may, in the exercise of discretion, be set aside.234

In their judgment, Boland and Ryan JJ referred to public policy reasons why a divorce order, once it has taken effect, should not be the subject of an appeal under s 94. Divorce, like bankruptcy, changes the status of a person in the community. A divorce order is an order that must therefore be capable of certifying to many public institutions, but particularly to persons who wish to remarry, the status of persons who were formerly married without the need to go behind the order.235 The reasoning of Boland and Ryan JJ does not preclude a declaration pursuant to s 113 of the FLA that a divorce order is voidable or void ab initio, or the possibility that a court might set aside a divorce order in the exercise of discretion when a declaration is sought. In a separate judgment, May J adopted the statements of law in the judgments in Marriage of Miller, especially by Fogarty J, to be correct. On this view, the court has an inherent jurisdiction to set aside a decree of divorce notwithstanding that it has become absolute, and in some circumstances a decree may be treated or acted [page 362] upon by the parties or by a court as a nullity even though it has not been formally set aside.236 The significance of the approach taken by the majority in Price v

Underwood, is that a divorce order will stand and have legal effect unless or until it is the subject of a declaration under s 113 or the order is set aside by the court. The attraction of this view of the law is the certainty that it provides as to marital status.

Arrangements for children 6.97 Section 55A of the FLA provides that a divorce order does not take effect unless the court is satisfied: (a) that there are no children of the marriage who have not attained 18 years of age; or (b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that: (i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or (ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.

If the court is in doubt as to whether proper arrangements have been made, it may adjourn proceedings until a report is obtained from a family consultant on the matter: s 55A(2). 6.98 For the purpose of s 55A, in Diessel & Diessel237 a child ‘en ventre sa mere’ was held not to be a child of the marriage. This decision was based on the context of the word ‘children’ in the section, which speaks of children ‘who have not attained 18 years of age’. ‘”[C]hildren” means living or born children, since a child’s age is invariably measured from its birth not from its conception.’238 A second argument was based on the use of the word ‘specified’ in the section, since at the time the section came into force an unborn child could not be specified: its sex, date of birth or presumably its name could not be known prior to birth. And what if the baby turned out to be twins? Third, the phrase ‘proper arrangements’ implied that the child must be capable of having such arrangements made for it. Other arguments were also used, including the supposed impossibility of a counsellor or

welfare officer (now family consultant) reporting as envisaged in s 55A(2) on the arrangements for the welfare of a foetus. [page 363] 6.99 Section 55A is applicable only in respect of divorce, and not nullity.239 This follows from the fact that it applies only in respect of a divorce order and its taking effect. In a case of nullity, no interim decree is made; rather, a decree absolute is made on finding the case proved. The history of s 55A (and its predecessor, s 63) is traced in the majority judgment of Watson SJ and Murray J in Marriage of Opperman.240 The section embodies the protective role of the court towards children in divorce proceedings. It is a matter for the exercise of the judge’s discretion when hearing the case,241 and each case will be determined in light of the facts and the judge’s perception of the child’s welfare. If the judge is not satisfied as to the arrangements, the main question that they may have to decide is whether they are justified in making a declaration under the second limb of s 55A, that the court may allow the divorce order to take effect in spite of the failure of the parties to make proper arrangements: … the court will have to balance on the one hand the termination of a marriage which has no social utility … as against the protection of the children of the broken family unit enjoined upon the court by s 43(c); but if indeed a question arises as to which aspect requires the more weight and attention, there is no doubt that the court should exercise its discretion so as to give more weight to the latter.242

6.100 The protective nature of s 55A was highlighted in the decision of the Full Court in Maunder v Maunder.243 The husband in this case was living in Brunei; the wife and children in Australia. The husband was paying the wife $750 per month in child support at the time he applied for a divorce. The wife opposed the granting of the decree nisi on the basis that proper

arrangements for the children were not in place and she had applied for increased child support, among other things. The father’s financial situation was unclear at that stage. The trial judge took the view that the wife was effectively holding the husband to ransom over the divorce until child support was resolved. Frederico J found circumstances existed that warranted the decree becoming absolute, even though he was not satisfied proper arrangements had been made for the children. On appeal, after referring to Opperman, Finn, Kay and Moore JJ cited the case of Marriage of Evans,244 where Mullane J refused to make a s 55A declaration because [page 364] he considered the wife was receiving inadequate child support. As to the present case, they went on to say: It was abundantly clear before his Honour that his Honour could not be satisfied that proper arrangements in all the circumstances had been made … [T]he only circumstance which his Honour sought to rely upon was that it was not customary for courts to hold parties to ransom over an application for dissolution for marriage while other issues were under debate. We do not feel that the categorisation of the wife’s conduct in this case can properly be said to be seen to hold the husband to ransom. She was appropriately concerned to ensure that proper arrangements had been made for the welfare of the children. There was a positive obligation on the court to not allow the decree nisi to become absolute unless it was so satisfied as to the arrangements or unless it was satisfied that there were circumstances by reason of which it should become absolute notwithstanding it was not so satisfied … Nothing effectively appeared in the material [from which] it could be said that ‘circumstances’ existed to justify the declaration under s 55A … 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.245

The protective role of the court under s 55A does not extend to substituting its own arrangements for those proposed by the parties,246 though the court might indicate what it would consider

satisfactory. It has also been said that ‘proper arrangements’ are not necessarily the same as the best arrangements the parties can achieve in the circumstances. Thus in one case, the best arrangements in the circumstances might not be ‘proper’ and in another, ‘proper’ arrangements may be something less than the best possible. ‘Proper’ arrangements may be understood as ‘satisfactory arrangements given the general standards and expectations of contemporary society’.247 6.101 Section 55A refers to ‘children of a marriage’. The definition of that concept is extended by s 55A(3) and (4) to include any child living with the parties immediately before separation and ‘treated by the husband and wife as a child of their family’. Holland J said in Playford v Collier248 that this latter phrase referred more to the assumption of legal parenthood of a child, than to the parents treating the child in the same manner as their own. [page 365] 6.102 In Schorel v Schorel,249 where paternity became an issue, the question arose as to the effect of a finding that certain children were included within the definition of ‘child of the marriage’ under s 55A(3). The judge before whom the divorce proceedings had come, had made a s 55A declaration concerning four children as children of the marriage. In subsequent proceedings, the paternity of two of the children was contested. The judge in those later proceedings ordered parentage testing under s 66W (now s 69W) of the FLA. The husband appealed and argued that the first judge’s declaration created an estoppel against the wife challenging his paternity. The Full Court held, in summary: 1.

Issue estoppel had very limited scope in family law, particularly where the welfare of children was involved.

2.

3.

To hold estoppel would be most unjust. It was never contemplated that the proceedings were concerned with anything other than the divorce becoming absolute, with questions of paternity being the subject for later proceedings. Issue estoppel relating to children’s paternity cannot arise under s 55A.

The plain fact of the matter is, of course, that paternity must be a matter of proof on the balance of probabilities. Hence, the paternity of a child cannot be decided by issue estoppel which operates only between the parties. (While there is much authority for avoiding the use of issue estoppel when the case concerns a child’s best interests, it was held by Watts J in Damiani v Damiani250 that this does not preclude issue estoppel being applied in other instances in family law litigation, as in Damiani, for example, where it was applied to findings of family violence.) The court in Schorel examined the nature of the issues of law and fact to be determined before granting a divorce. The court advanced the following conclusions: (1) A declaration under s 55A is not an essential part of a divorce order, but rather has a negative operation, preventing the order becoming effective until the declaration is made. (2) The declaration does not relate to issues between the parties but is an obligation imposed by Parliament on the Court as part of the Court’s obligations towards the welfare of children.251

Rescission of divorce orders 6.103 A divorce order can be rescinded by the court, at any time before the order takes effect, under either s 57 or s 58. The parties can apply for rescission of the [page 366]

order under s 57 on the ground that they have become reconciled. Under s 58, on the application of a party or on the intervention of the Attorney-General, the ground for rescission is that there has been ‘a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance’. In practice, this is the main provision used to challenge divorce orders (but see ss 55(5) and 94 relating to appeals against decrees). Marriage of Krebs252 provides an example of rescission under s 58. Certain orders as to property and custody had been obtained by the husband by suppression of evidence. The Full Court pointed out that undefended property proceedings place the court in difficulty because of the one-sided nature of the evidence: It is essential in a case of that sort that there be a full and frank disclosure by the applicant of all relevant facts and circumstances so as to enable the court to make an order which is proper and just in the circumstances.253

As the presentation of the case had precluded a sufficient assessment of the respondent’s contributions to the property, the decree nisi was rescinded. In Marriage of Horton,254 a decree nisi had been made on a husband’s application. The wife was living in Hong Kong and had submitted affidavits at the hearing about matters in dispute between the parties. The trial judge nevertheless granted a decree, noting that the wife had failed to file an answer to the application. The Full Court held that the trial judge’s refusal to adjourn the proceedings constituted an injustice towards the wife and ordered the decree nisi to be rescinded.

Foreign divorces, annulments and legal separations 6.104 The FLA provides for the recognition of a divorce, annulment or legal separation effected under the law of an

overseas jurisdiction. An overseas jurisdiction is defined in s 4(1) as a country, or part of a country, outside Australia. Section 104 provides that a divorce, an annulment of a marriage, or a legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction, shall be recognised as valid in Australia if, at the date of the institution of the proceedings that resulted in the divorce, annulment or legal separation, either or both of the parties met certain qualifying connections with the overseas jurisdiction. The various qualifying connections for applicants and respondents are set out in s 104 and include ordinary residence, domicile and nationality. [page 367]

Void and invalid marriages Divorce and nullity 6.105 As discussed earlier, nullity is available only if the marriage is void (see 6.10ff). Once this fact is established by the order of a court, the order gives recognition to the fact that there never was a marriage. Consequently, there can be no rescission of a decree which only recognises an existing fact. Indeed, the nullity of the marriage, unlike divorce, does not depend on the order of the court and in that sense the order is only declaratory. The decree in nullity cases is in any case absolute and therefore final. Ellis J, in Schmidt v Schmidt,255 pointed out that s 64 of the FLA provided that a decree of dissolution had, in the first instance, to be a decree nisi.256 Nothing was said about nullity decrees. This accords with the position in law, that a decree of nullity recognises that the marriage in question is void ab initio. 6.106

Where both nullity and divorce proceedings are before the

court, the court cannot proceed to a consideration of the divorce proceedings unless it has first dismissed the nullity proceedings: FLA s 52.257 Again, the reasoning is obvious. If the marriage is in fact void, there can be no divorce and, once this issue has been raised, the court will have to determine it, even if the application for nullity should be withdrawn.258 Schmidt v Schmidt highlights the relationship between divorce and nullity. The marriage in question was entered into in 1960. Subsequently, the husband told the wife that he had been married before but that he was divorced from his first wife. When the marriage broke down some nine years later, it was discovered that the divorce in relation to the first marriage was not obtained until 1964; that is, after the date of the 1960 ‘marriage’. This made the case one of nullity rather than divorce. In cases of uncertainty, it is advisable to apply in the alternative for both. It should be noted that the definition of a ‘party to a marriage’ includes a party to a marriage that has been annulled: s 4(2)(b). For the purposes of bringing applications under Pt VIII of the FLA in relation to property, spousal maintenance and maintenance agreements, the Act defines ‘marriage’ to include a ‘void marriage’: s 71. As a result, it makes no practical difference whether a party to the marriage has been granted a divorce order or a decree of nullity. [page 368]

Declarations of validity 6.107

Section 113 of the FLA provides that:

In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in sub-section 4(1), the court may make such declaration as is justified.

Paragraph (b) of the definition of ‘matrimonial cause’ refers to:

(b) proceedings for a declaration as to the validity of: (i) a marriage, or (ii) a divorce, or (iii) the annulment of a marriage; by decree or otherwise.

The jurisdiction of the Family Court to entertain such actions is the same as in respect of any other of the classes of ‘matrimonial cause’ defined in the FLA, except divorce, which has somewhat more stringent requirements: see generally, s 39(3) and (4). 6.108 The court can make a s 113 declaration as to the validity of a marriage or a divorce order. These are sometimes sought in relation to Australian marriages,259 but more often in relation to overseas marriages260 and divorces.261 Lester v Lester262 is an example of a case concerning an overseas marriage. In seeking property orders, Ms Lester claimed the parties were married in Ghana in 1997. In his response, Mr Lester sought a declaration that the parties were not, and had never been, married. Carmody J instead declared the parties were married and Mr Lester appealed. The evidence as to the existence, or otherwise, of a marriage was conflicting. It was agreed the parties had lived together and that they had described themselves as being in a de facto relationship when seeking permanent residence in Australia, but there was a note on an immigration file referring to a wedding certificate from Ghana and citing its date. The meaning of the note was unclear. [page 369] Carmody J found neither party particularly credible and was not satisfied on the balance of probabilities that they were married. However, due to the parties’ cohabitation and their reputation as spouses (which was not disputed), he held the common law presumption of marriage was raised and Mr Lester had not rebutted that presumption.

The Full Court disagreed that the presumption was raised and allowed the appeal. Their Honours noted the questions hanging over the veracity of both parties and the lack of third party evidence and went on: In the absence of a finding that a marriage ceremony took place, even one of questionable validity, the evidence in relation to cohabitation and repute would need to be substantial to allow such a presumption to operate. The state of the evidence in this case, as described by his Honour, was not in that category. In our view the application of the presumption must be consonant with the evidence in the case, not sit, as it does here, in an evidentiary vacuum.263

Marriage of Kapadia264 (see 5.80) is an example of a circumstance in which the court will make a declaration as to the validity of a marriage. In that case the parties, who were already validly married to one another, entered into a second marriage in contravention of s 113 of the Marriage Act 1961 (Cth). Kay J declared that the second marriage was invalid. The question whether the court could grant a decree of nullity on the ground that the second marriage was void was addressed by Kay J. His Honour concluded that the court could not pronounce a decree of nullity of marriage other than on one of the grounds in s 23 or s 23B of the Marriage Act.265 His reasoning was that s 51 of the FLA states that an application for a decree of nullity of marriage shall be based on the ground that the marriage is void and s 23B states that a marriage is void where circumstances specified in (a)–(e) apply, ‘and not otherwise’. He concluded that this does not preclude a declaration that the second marriage was invalid. In his decision,266 Kay J referred to the following passage in an article by Dickey: Logic must surely prevail. A second ceremony of marriage involving parties who are already lawfully married must be a nullity, despite the fact that the grounds of nullity in s 23B(1) purport to be exclusive. If these grounds really were exclusive, marriage between persons of the same sex would be valid, for there is no ground of nullity which covers this situation either. The possibility of a valid homosexual marriage under current law is, however, an absurdity

[page 370]

which only confirms the opinion that the grounds of nullity in s 23B(1) are not in truth all-embracing.267

More recently, in Zau v Huang,268 Berman J reached the same conclusion as Dickey, namely that the proper declaration is that the second marriage is a nullity. In this case, a couple who were validly married to each other in China subsequently went through a second marriage ceremony in Australia. Berman J concluded that, logically, the second marriage must be void, notwithstanding that entering into a second marriage in contravention of s 113 of the Marriage Act is not referred to in s 23B(1) as a ground of nullity, and notwithstanding the apparently exclusive nature of the words ‘and not otherwise’ at the conclusion of s 23B. Accordingly, Berman J declared the second marriage to be void and therefore a nullity. Another circumstance in which a declaration as to the validity of an Australian marriage has been made was in Re Kevin (Validity of marriage of transsexual):269 see 5.13, 6.43. The marriage in this case, between a post-operative transsexual man (registered at birth as female) and a woman, was declared valid.270 In C & D (falsely called C)271 (see 6.42–6.43), the original application was also one for a declaration as to the validity of a marriage between a woman and a hermaphrodite. However, on the advice of Bell J, the applicant filed a nullity application: see 6.42. Accordingly, an application for a decree of nullity and an application for a declaration as to validity can be used to test the validity of a marriage. The decision in Zau v Huang is consistent with Dickey’s argument and with the conclusion that no valid distinction can be drawn between a void marriage and a marriage that is invalid because it contravenes s 113 of the Marriage Act or because it is not a marriage as defined in s 5(1) of that Act. Ultimately, the legal effect of a declaration of invalidity or a decree or declaration of nullity in these circumstances is the same. However, where s 51 FLA applies, the decree must be granted if the marriage is void, whereas the terms of s 113 FLA are clearly discretionary and of broader application than s 51.

In the event that a decree of nullity is made or a marriage is declared a nullity, void or invalid, a divorce order will not be made. Therefore a declaration that a marriage is a nullity, void or invalid has implications for an application for divorce.

Ancillary proceedings 6.109 It has been one of the characteristics of Commonwealth family law legislation that it assumes a power to grant ancillary relief, even where the [page 371] marriage to which it relates is void.272 The apparent contradiction inherent in that assumption of jurisdiction was to some extent explored in Attorney-General (Vic) v Commonwealth (the Marriage Act case):273 see 4.12. The power was probably best rationalised in the judgment of Kitto J who said that the parliament, having rendered void certain classes of marriages that otherwise would have been valid, had done no more by enacting ancillary provisions than limit the legal consequences of that avoidance.274 6.110 However, to garner jurisdiction there always had to be something that answered to the description of a ‘void marriage’. In other words, the FLA assumes there had been something which, but for the grounds of avoidance spelt out in the Act, would have been a valid marriage. This includes a purported marriage that is subject to avoidance under the FLA if it fails to comply with the requirements of s 23(1) or s 23B(1) of the Marriage Act 1961 (Cth) (ie the grounds for nullity). It may also include purported marriages celebrated overseas under the laws of an overseas country. The jurisdiction of the court to make declarations respecting such a purported marriage arises from a combination of s 39(4) of the FLA (if either party to the purported marriage is an

Australian citizen, is ordinarily resident in Australia or is present in Australia) and para (b) of the definition of ‘matrimonial cause’ in s 4 of the Act. The Act also provides, under s 42(2), that: … where it would be in accordance with the common law rules of private international law to apply the laws of any country or place (including a state or territory), the court shall, subject to the provisions of the Marriage Act 1961, apply the laws of that country or place.

At common law the validity of a foreign marriage is tested, as to formalities, by reference to the lex locus celebrationis, and, as to capacity, either to the ante-nuptial domicile of the parties, or to their intended matrimonial home: see 5.61ff.275 6.111

Regard should also be had to s 6 of the FLA, which states:

For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

This provision, which goes somewhat further than its predecessor (Matrimonial Causes Act 1959 (Cth) s 6A), was attacked during the parliamentary debates on the FLA on the ground that it would introduce polygamy into Australia. That, however, is not the effect of the section, which specifically refers to ‘proceedings [page 372] under this Act’. This means a party to a polygamous marriage is not precluded from obtaining relief under the FLA merely because the marriage was polygamous by the law of an overseas country. There has to be such a law because the section only refers to a union entered into outside Australia. In the absence of s 6, a party who was seeking such relief under the FLA would have been met by the classic defence that a polygamous union was not a marriage within the definition in Hyde v Hyde & Woodmansee276 and therefore not amenable to the jurisdiction of the court: compare

Khan v Khan.277 It was after the latter decision had been given that s 6A of the Matrimonial Causes Act 1959 was introduced into that Act by amendment in 1966. 6.112 Although jurisdiction over ancillary matters will arise in relation to proceedings under the FLA involving a marriage that is void, the jurisdiction over declarations of validity of marriage cannot be used for this purpose if those proceedings are a mere fictitious device to attract a jurisdiction that would not otherwise exist: see Marriage of Read278 and comments on that decision in the Supreme Court of South Australia in Tansell v Tansell.279 The attempt in Read’s case to invoke the jurisdiction was disapproved of by the Full Court of the Family Court of Australia in Marriage of Tansell.280

Termination of de facto relationships Introduction 6.113 Earlier in this chapter, we stated that the legal significance of a divorce order or a decree of nullity of marriage is that a person is free to remarry. Further, the ability of parties previously married and now divorced to institute maintenance and property proceedings arising out of the marriage is constrained by s 44(3) of the FLA. There is no equivalent to a divorce order or decree of nullity applicable for a couple who have been in a de facto relationship. Nevertheless, it can be crucial for the purposes of the FLA (and in other circumstances) to determine when a de facto relationship was terminated. An application for property or maintenance orders can only be brought under the FLA once the de facto relationship between the parties to the application has broken down. This is because the Act relies on the referral of power by the states in respect of ‘financial matters relating to the parties to de facto relationships arising out of the breakdown of

those de facto relationships’: s 90RC(2). (This express limitation does not apply in Western Australia because state law applies in that jurisdiction: see 4.92.) [page 373] The initial question whether two people have been in a de facto relationship is answered by applying the definition of de facto relationship in s 4AA of the FLA. (This definition is discussed in Chapter 5.) This question will arise in cases brought to the Family Courts and also in state courts,281 and the answer will determine whether the FLA or state de facto legislation applies to the parties. 6.114 If it is assumed that the parties have been in a de facto relationship, it is difficult to imagine a case coming before the court in which the parties will be in dispute over whether the relationship has broken down. That will be self-evident. The relationship can be brought to an end unilaterally and institution of proceedings will be clear evidence that at least that party regards the relationship as being terminated. (Note that for certain provisions of a financial agreement made under Pt VIIIAB to come into force, at least one of the parties to the agreement must declare in writing that the parties have separated: s 90UF.) 6.115 The relevant issue concerning termination will usually be when the relationship ended. The date on which the relationship ended is important for a number of reasons.282 First, Pt VIIIAB of the Act only applies to a de facto relationship that broke down after 1 March 2009 (or after 1 July 2010 in South Australia) unless both parties agreed to ‘opt in’ to the FLA provisions.283 If a de facto relationship ended before this date, the parties will only be able to seek financial relief under state or territory legislation. If a person is seeking to establish that they are a parent for the purposes of s 60H(1), which applies to assisted conception (see 7.15ff), they need to prove that they were in a de facto

relationship with the woman to whom the child was born at the time the procedure resulting in the birth of that child was carried out.284 Second, an application for maintenance or property orders, or a declaration of interests in property, must be brought within two years after the end of the de facto relationship (s 44(5)),285 other than where leave is granted to apply out of time (s 44(6)): see 13.6. If the parties to a de facto relationship do not bring proceedings within the time allowed, they will only be able to seek relief based on state or territory property and equity law. Third, the date on which the relationship ended is relevant to the duration of the relationship, which can include one or more periods of time: see 5.114. [page 374] 6.116 The duration of the de facto relationship is significant in a number of ways. It is a circumstance to which a court will have regard in determining whether a de facto relationship existed between two people: s 4AA(2)(a). It is relevant to determining whether the period or total of the periods of the relationship is at least two years for the purposes of s 90SB. The length of the relationship will also be important in determining maintenance and property orders for the alteration of property interests under ss 90SB and 90SM(4) respectively: see Dahl v Hamblin,286 discussed at 5.114.

Meaning of breakdown 6.117 There is no legislative definition of the circumstances which establish that a de facto relationship has come to an end. The end of the relationship is brought about by a breakdown of the relationship — a term not defined in the Act except to exclude the breakdown of a de facto relationship by the death of one of the parties: s 4(1). In a number of cases decided since 1 March

2009, the courts have considered the meaning of ‘breakdown’ and how to ascertain whether a breakdown has occurred. In doing so, the courts have been guided by case law in the states whose de facto property legislation most closely mirrors the FLA provision, namely New South Wales and Queensland:287 see 5.100. In Davies v Richardson,288 the New South Wales Supreme Court was required to determine whether a de facto relationship as defined by s 4AA of the FLA had broken down before 1 March 2009. If it had broken down after that date, the relationship would not qualify as a de facto relationship under s 4 of the Property (Relationships) Act 1984 (NSW) and the court would not have jurisdiction over the matter. In examining the meaning of ‘breakdown’, Slattery J said: The Macquarie Dictionary relevantly defines break down as ‘to collapse’ or ‘to cease to function’. And the Shorter Oxford Dictionary defines ‘break down’ as ‘the act of breaking and falling down; a collapse’. As this case illustrates, relationships tend to decline over time. But the question whether a de facto relationship ‘broke down’ before 1 March 2009 is really one of whether the de facto relationship had come to an end.289

The court in Davies v Richardson agreed with Slack FM in Vine & Carney,290 who said in respect of the term ‘break down’ in Sch 1 item 86 of the amending legislation: I consider though that the term breakdown in the context of the Act and having regard to the referral of powers by participating States, should be interpreted

[page 375] such that the Court, before exercising power under the Act, should be satisfied, according to the requisite standard of proof (the balance of probabilities), that the de facto relationship had broken down to the point that it had failed and had ended.291

In Smyth & Pappas,292 Cronin J expressed the view that ‘indications’ that a relationship has ended once the parties are no longer living together will not be sufficient to show that a

relationship has broken down. While recognising that there may be uncertainty about the future in these circumstances, Cronin J concluded that: … the de facto relationship goes on even though the partners are not doing all of the things together that they had previously done. The keeping apart has to have finality about it and that is best seen where the de facto relationship has none of its previous characteristics any longer. For example, some parties whose de facto relationship has ended, continue to parent children and perpetuate financial interdependence but they do so in a way which can only be objectively described as different from what had occurred previously when to a large degree, the relationship was a functional one. The ending of the relationship must have a permanence about it rather than a temporary suspension.293

In Vaughan & Bele,294 the court was required to determine whether a de facto relationship as defined by s 4AA existed on 1 March 2009. In that case, Cronin J stated: … there is a distinction between actions which connote unhappiness in a relationship and the termination of it. Termination has a distinct finality about it but it must be such that both parties acknowledge but not necessarily accept, that at least one of them has decided to permanently end the relationship.295

This state of permanence must be evident to the court at the time of the proceedings before the court. The finding is relevant to determining any entitlement to maintenance and property arising out of the relationship on a ‘once and for all’ basis. A finding that a de facto relationship has broken down in a permanent sense presumably does not preclude the parties from resuming their relationship at a later date. As the cases show (see 5.104), even when a relationship has lost the characteristics of a previous de facto relationship and no longer comes within the s 4AA definition, for the purpose of calculating the period or periods of the relationship, the relationship may be held to have been suspended for a while and [page 376] resumed later on. In this sense, ‘broken down’ apparently means

broken down ‘now’, rather than broken down ‘forever’.

What constitutes breakdown of a de facto relationship 6.118 Although marriages and de facto relationships break down in similar ways in an emotional and relationship sense, there is an essential difference from a legal viewpoint between proving breakdown of a marriage and breakdown of a de facto relationship. This difference is referred to by Mahoney JA in Hibberson v George,296 a case in which the New South Wales Court of Appeal was required to determine whether the de facto relationship of the parties had ended before the commencement of the De Facto Relationships Act 1984 (NSW). Mahoney JA stated: The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.297

Unlike marriage, which creates a legal relationship between the parties that is only brought to an end by a final divorce order, a person seeking to rely on the existence of a de facto relationship must prove on the balance of probabilities that the relationship existed at the relevant time. The implication of this requirement is evident from the following remarks of Dutney JA of the Queensland Court of Appeal (with whom McPherson and Williams JJA agreed) in S v B (No 2):298 In this regard there is a difference between a marriage and a de facto relationship. In a marriage, the parties remain married and are presumed to be living as a ‘couple’ unless the party wishing to end the relationship proves a separation for the statutory period. In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality.299

[page 377] 6.119 There is a corresponding difference between marriage and a de facto relationship when it comes to proving that the relationship has come to an end. In S v B (No 2), Dutney JA refers to the requirements to be satisfied by a party to a marriage who alleges that the parties have separated but have continued to reside in the same residence, set out in Marriage of Pavey: see 6.79. In these circumstances, the party alleging separation must satisfy the court that there has been a change in their relationship, gradual or sudden, constituting a separation. Dutney JA goes on to state: The reverse applies in the case of a de facto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives.300

The same applies when the question to be answered is whether a de facto relationship has broken down for purposes of the FLA.301 Unlike marriage, there is no presumption of continuance of a de facto relationship:302 an applicant must satisfy the court that the relationship as defined in s 4AA(1) existed at the relevant time. For this reason, it is inappropriate to try to draw parallels between marriage and a de facto relationship as contemplated by the FLA.303 Section 4AA(1) requires the court to be satisfied that the parties to it are a ‘couple living together on a genuine domestic basis’. The Full Court has reiterated on several occasions that comments made in the course of discussing facts — for example, whether the parties have ‘merged their lives’ — are not to be ‘elevated to the status of the provisions or substituted for the statutory test’:304 see 5.101. In Smyth & Pappas,305 the parties had known each other since 2002 and there was sufficient evidence for the court to conclude that, at an identifiable point, they formed a de facto relationship. Cronin J considered the more difficult question in this case was

whether, and when, the de facto relationship ended. During phases of their relationship, for example, the parties did not reside together and had been seeing other people. The court held that to determine whether the relationship had ended permanently required an examination of ‘what the parties were doing [page 378] and saying over the life of the relationship as well as after it’.306 A number of factors — including sharing a home, jointly caring for a child of the applicant and continuing to be seen at events as a couple — were significant to finding the date at which the relationship had permanently broken down. The inquiry as to whether a de facto relationship had broken down at a particular date involves deciding whether the definition in s 4AA was satisfied on that date.307 This also means that where the parties are in dispute as to whether a de facto relationship existed and if so, at what date it ended, the court will need evidence of a highly personal and often intimate nature to be brought before it by the parties. In many ways, the inquiry as to the existence and breakdown of a de facto relationship harkens back to the days prior to the FLA and the introduction of no-fault divorce for married couples, discussed earlier in this chapter. 6.120 Cases decided under state de facto laws established that separation may occur by the unilateral action of one partner, and agreement between the two partners to bring the relationship to an end is not required.308 Previous case law has also established that communication of an intention to end a de facto relationship is not essential to prove that the relationship has broken down. In S v B (No 2),309 Dutney JA, in adopting the approach of Mahoney JA in Hibberson v George, said: … a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does

not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.310

Similarly, in Vine & Carey,311 Slack FM concluded that an applicant who seeks to establish that a de facto relationship exists: … cannot discharge her onus by mere proof that there was no express communication by either party that the relationship was at an end. Where there

[page 379] has been no express communication by either party to end the relationship but one party asserts that the relationship had ended, the applicant has an onus to satisfy the Court that objectively viewed, the positive aspects of the relationship were consistent with and lead to a conclusion of a continuing de facto relationship.312

As stated by Cronin J in Vaughan & Bele313 in the passage extracted at 6.117, both parties need to ‘acknowledge but not necessarily accept’ that the relationship is permanently at an end. While express communication of an intention to end a de facto relationship is not a prerequisite to showing that a relationship has ended, it may provide the factual evidence on which a court will make that jurisdictional finding of fact.314 In Cadman v Hallett,315 a de facto relationship lasting almost two decades was found to have been terminated when one party communicated his intention to end the relationship to his partner, notwithstanding that the intention to end the relationship was formed three months earlier. In that case, the entry by the partner into a sham marriage for the purpose of obtaining the right to live permanently in the United States was not considered necessarily inconsistent with a continuing de facto relationship. 6.121 The legal consequences of the difference between the de jure status of marriage and a de facto relationship are particularly

significant in cases where some characteristics of the former relationship continue — for example, sexual relations — and there has been no express communication by one of the parties that the de facto relationship has ended. How does a court determine whether a de facto relationship has broken down if the parties continue to reside together after the alleged separation? It is evident from Vine v Carey that it is not enough for an applicant to point to an absence of communication to prove that the relationship continued. Even though agreement to end the relationship is not required and express communication is not an essential element of breakdown, it may be necessary for the party seeking to terminate the relationship to clearly communicate their intention to end the relationship to the other party. In the absence of communication, a court may find, from an objective viewpoint, that at the time in question the parties were still in a de facto relationship. In Vaughan & Bele, for example, the parties did not dispute that they had been in a de facto relationship. It was the applicant’s case that the relationship did not end until the respondent specifically told him that she was leaving the house in which they were both living. Cronin J found the evidence of the parties to be starkly different on a number of issues and in general preferred the evidence of the respondent. The [page 380] following passage shows the approach his Honour took to determine the date of breakdown, and the importance that an announcement that the relationship is over can have for that determination: None of the factors set out in the Act as indicia of a de facto relationship is any more important than any other. It is not unexpected that after a relationship breaks down, the parties may have a jaundiced view of what they have done in the past particularly where one party is seeking to deny the existence of the relationship. In this case, the examples of the bike riding, the co-parenting, the ballroom dancing,

the Christmas luncheon and the service club dinner would all indicate that there was a mutual commitment to a shared life. The degree of that commitment not only varies in every case but also from various perspectives of the parties themselves. The respondent went camping and shared accommodation facilities for conferences and holidays all of which would indicate the degree of comfort in each other’s company. On any view, someone outside looking in would perceive the applicant and the respondent as a committed family having regard to the activities to which I have just referred … To bring the relationship to an end for the purposes of making it clear that there was no longer any de facto relationship, required the respondent to formally make the announcement to the applicant despite her view that she had withdrawn from any commitment to it well before 1 March 2009. I find that that formal commitment to end the relationship was made as the applicant said on 2 March 2009.316

In some cases, the courts have applied the approach taken in divorce cases to establishing breakdown of marriage between parties who have separated under one roof (see 6.73–6.83) and required a respondent to satisfy the court of intention, action and communication of the intention to separate.317 This approach is not consistent with the case law discussed at 6.118, which establishes that the onus is reversed even in these circumstances.318 It is for the party who asserts that the de facto relationship continued to exist at the relevant date to prove that fact. From an evidentiary point of view of course, it will be necessary for the party resisting an application under the FLA to lead evidence that the relationship had in fact broken down by the particular date. Evidence that the respondent intended to end the relationship, and that the parties’ actions were such that the relationship cannot be seen to have continued as one of a couple living together on a genuine domestic basis from an objective viewpoint, will go a long way to defeat the [page 381] applicant’s ability to discharge the onus they bear. This was the basis on which the court concluded in Clisbey v Viges319 that the

de facto relationship in that case had broken down before 1 March 2009. In that case, Stevenson J found that the respondent had formed the intention to live separately from the applicant on 10 February 2009 and that he took actions which clearly demonstrated his decision. He also accepted the respondent’s evidence as to words he had spoken and concluded therefore that the respondent had communicated his intention to end the relationship to the applicant and other people on 10 February 2009. Interestingly, while finding that the respondent had formed the requisite intention Stevenson J stated: It is immaterial that he harboured strong feelings for her after that date and expressed love and a wish to resume the relationship at times.320

6.122 A period of suspension does not of itself bring a de facto relationship to an end for the purposes of the FLA. The Act recognises that a de facto relationship may exist over a period or periods of time: ss 90RD(2)(a) and 90SB(a). This has been held to justify the conclusion that a de facto relationship can be suspended and not permanently broken down.321 In Smyth & Pappas,322 for example, the parties were held to have been in a de facto relationship that began in 1999 and finally ended in December 2009. Between December 2005 and July 2006, and from December 2007 to December 2008, the de facto relationship was held by Cronin J to be suspended but not to have ended in any permanent sense. This is consistent with the conclusion of the Full Court in Dahl v Hamblin323 that for the purposes of Pt VIIIAB, there can only be one relationship between the same two parties, albeit in some cases broken into periods. The court provided the following reason for its conclusion: We find it difficult to accept that Parliament intended to impose on litigants and the courts the burden of establishing, or finding, whether in a given case, a particular breakdown in a relationship was such that a resumption of the breakdown was merely some form of dividing line between periods of the relationship.324

In Dahl v Hamblin, the court concluded that there can still be an aggregation of periods even if there was a breakdown of the

relationship between the periods to be aggregated.325 The same conclusion has been reached regarding calculation [page 382] of the duration of a de facto relationship pursuant to s 205ZB of the Family Court Act 1997 (WA).326 The conclusion that periods during which a couple is in a de facto relationship can be aggregated does not suggest that their relationship will remain the same at all times. In Moby v Schulter,327 Mushin J held that a relationship between two people can go through different phases, not all of which will be phases of a de facto relationship as defined by s 4AA(1). In this case, the court was required to determine whether the parties were in a de facto relationship on 1 March 2009 for a period of at least two years. It was found that the parties met in March 2000 and any relationship between them came to an end in October 2009. The Court concluded that the parties were therefore in a relationship for approximately nine-and-a-half years, but that a conclusion about the duration of the relationship is different from a finding as to the nature or quality of the relationship. Having regard to all the circumstances — including the fact that during periods of separation the parties ‘did not live together, they had no mutual intention as contemplated by the legislation and their sexual relationship ceased’328 — Mushin J concluded that the parties’ relationship did not continue as a de facto relationship in accordance with the legislation during the periods of separation. Ultimately, he concluded that the parties were in a de facto relationship at 1 March 2009 that had lasted for at least two years and made a declaration accordingly. For the purposes of determining whether a de facto relationship was in existence at a particular date or for a requisite length of time, it does not appear to matter whether at some point in time the relationship had previously broken down or was merely

suspended. However, a finding that a relationship is merely suspended would preclude an application for proceedings under the FLA that is dependent on a court finding that the relationship has permanently broken down: see 6.113. 6.123 The fact that a party has engaged in sexual activity329 or has entered into a relationship with another person outside the relevant relationship330 will not of itself bring the relevant relationship to an end, since there is no legal requirement that a de facto relationship is sexually monogamous. Further, a temporary separation, by illness or infirmity for example, will not mean the relationship has ended as it is not a requirement that the parties have a continuous common residence. It has also been held that a relationship may continue even though one party has committed very serious family violence against the other who, it has [page 383] been found, has been seriously adversely affected by the other party’s violence.331 In referring to a particular instance of serious family violence in Moby v Schulter, Mushin J stated: [M]y experience in this jurisdiction persuades me that events of that kind, no matter how serious, do not inevitably bring the relationship to an end. As with all aspects of this matter, it is necessary to consider the entirety of the facts of the relationship.332

6.124 A de facto relationship will be terminated, in a practical sense, by the marriage of the parties to each other. In the event that the parties to the de facto relationship marry each other, the financial provisions in Pt VIIIAB Div 2 cease to apply. (The parties would then need to bring proceedings under Pt VIII of the Act.) Notably, ‘breakdown,’ is defined in s 4(1) not to include a breakdown of a de facto relationship ‘by reason of death’: s 4(1).333 This definition of ‘breakdown’ is explained by the fact that

the power referred to the Commonwealth by the referring states is for ‘financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships’: s 90RA(2)(a). As a consequence, applications under Pt VIIIAB can only be brought during the lifetime of both of the parties to the de facto relationship and after the relationship has broken down. In the event that one of the parties to the de facto relationship dies before the relationship has broken down, the financial consequences of their relationship will be governed by state laws, including laws of succession and testator family maintenance. In a practical sense, and other than for the purposes of the FLA, a de facto relationship will be terminated by the death of one or both of the parties to the relationship. 6.125 In the jurisdictions that allow the registration of de facto relationships (currently the Australian Capital Territory, Tasmania and Victoria), the fact that a registered relationship (see 6.126) has been terminated by a party (or a relevant court)334 should mean, subject to contrary evidence, that the de facto relationship has come to an end.

Registered relationships and civil partnerships 6.126 The requirements for terminating a registered relationship are more straightforward than those required to obtain a divorce order. For example, there is no need to satisfy a court that the relationship has broken down irretrievably [page 384] or, where there are children involved, that proper arrangements have been made for their care, welfare and development as required by s 55A.335 Further, when the parties are married or seeking to establish that an unregistered de facto relationship has

broken down, the need to satisfy the court that the couple has separated may involve intimate details of the relationship between the parties being shared with the court, for instance when the parties have continued to live under the one roof. In contrast, as Rundle notes: No such intrusive inquiry is required to revoke a formalised relationship in any state or territory scheme. All that is required is that one or both parties want to revoke the registration of the relationship.336

The legislation in New South Wales, Tasmania and Victoria provides that a registered relationship is terminated on the death or marriage of either party.337 An application can be made by one or both of the parties to revoke the deed of registration of the relationship.338 Under the Tasmanian legislation, a magistrate has the power to revoke a ‘deed of relationship’, although the Act is silent as to what factors a magistrate might take into account in the exercise of this power.339 In New South Wales, the application is made by the Registrar of Births, Deaths and Marriages for revocation of registration.340 In Victoria, the relevant court ‘may order the revocation of the registration of a registered relationship’.341 There is a ‘cooling off’ period of 90 days before the revocation of a ‘deed of relationship’ takes effect under the New South Wales, Tasmanian and Victorian legislation.342 Similarly, a civil partnership is terminated on the death or marriage of either party.343 It may also be terminated by either or both of the parties or by court order.344 The Australian Capital Territory provision for de-registration of a relationship differs from its New South Wales, Tasmanian and Victorian counterparts in that a ‘civil partnership’ — discussed at 5.119 — can be terminated (apart from the death [page 385] or marriage of either party) by the filing of a notice which, if not

revoked, does not take effect for 12 months.345 The ‘cooling off’ period for the termination of a civil partnership under the Civil Partnership Act 2008 (ACT) is the same as the length of time that a married couple need to be separated before they are eligible for divorce. The Supreme Court of the Australian Capital Territory also has the power to terminate the relevant relationship where it considers that ‘the civil partnership cannot be terminated under section 10’.346

1.

See Australian Bureau of Statistics, 3310.0, Marriage and Divorce, Australia, 2014, www.abs.gov.au/ausstats/[email protected]/mf/3310.0 (accessed 8 December 2015).

2. 3.

Ibid. For an example, see B Maley, Divorce Law and the Future of Marriage (CIS Policy Monograph 58), The Centre for Independent Studies, St Leonards, 2003.

4.

See Lengyel v Rasad (1989) 13 Fam LR 648; (1990) FLC ¶92-112; (1989) 99 FLR 130, where it was confirmed that an application for a declaration as to the validity of an overseas marriage was a ‘matrimonial cause’ within the definition in s 4(1). A Dickey, Family Law, 5th ed, Lawbook Co, Sydney, 2007, pp 10–11, 47–8.

5. 6. 7.

See the definition of ‘proceedings for principal relief’ in s 4(1). See r 2.01 of the Family Law Rules 1984 (Cth), which sets out the required form for each type of application.

8.

9.

While FLA s 39(1) gives jurisdiction in respect of matrimonial causes to state and territory Supreme Courts, the jurisdiction of state Supreme Courts was terminated by proclamation on 27 May 1976: Commonwealth of Australia Gazette S86, effective from 1 June 1976. FLA s 39(1).

10. 11.

FLA ss 39(2), 46(2A). FLA s 44A.

12.

Family Law Regulations 1984 (Cth) reg 10A (prescribing only: courts presided over by magistrates who are also registrars of the Family Court of Western Australia; Magistrates’ Courts in the Australian Capital Territory; and the Court of Petty Sessions of Norfolk Island). Except in Western Australia: see s 40A.

13. 14. 15.

FLA s 39(1A). Note, however, that the Family Court of Australia Practice Direction No 6 of 2003 requires that all divorce applications be filed in the Federal Circuit Court of Australia.

16. 17.

Family Law in Australia, AGPS, Canberra, 1980. Under s 98A(3), the definition of ‘child of a marriage’ is extended to include children treated by the parties as children of their family. This reflects s 55A(3).

18. 19.

See s 98A(1). See s 98A(2), (2A).

20.

Prior to 2005, the terminology in these sections was different. Divorce was called dissolution of marriage, the provisional divorce order was called a decree nisi, and that decree became absolute after the required passage of time: see 6.90. Warren & Warren (1988) 12 Fam LR 245; (1988) FLC ¶91-923; Price v Underwood (Divorce Appeal) (2009) 41 Fam LR 614.

21. 22.

See Marriage of Wardale (1990) 14 Fam LR 195; FLC ¶92-151; (1990) FLR 436; Marriage of Cross (1995) 19 Fam LR 468; FLC ¶92-628; (1995) 120 FLR 57.

23.

Matrimonial Causes Act 1959 (Cth) s 21.

24. 25.

(1998) 23 Fam LR 491; FLC ¶92-824; (1998) 146 FLR 406. See, for example, Allamar v Benny [2012] FamCAFC 42 at [5].

26. 27.

By the Marriage Amendment Act 1976 (Cth). See the Explanatory Memorandum, Marriage Amendment Bill 1976 (Cth), House of Representatives, 1976.

28. 29.

By the Marriage Amendment Act 1985 (Cth). This therefore allows marriages of foreign nationals, solemnised by or in the presence of an authorised foreign consular officer, to take place in Australia when they might otherwise fall foul of s 23B: see the Marriage Act 1961 (Cth) Pt IV Div 3.

30. 31.

Marriage Act 1961 (Cth) s 5(1). (1983) 9 Fam LR 10; FLC ¶91-328.

32. 33.

Until 2005, the provisional divorce order was called a decree nisi: see 6.90. Marriage Act 1961 (Cth) s 94(3), (4).

34. 35.

[2010] FamCA 743. (1977) 3 Fam LR 11,518; FLC ¶90-298; (1977) 29 FLR 418.

36. 37.

Manning & Manning (No 2) (1978) 4 Fam LR 173; FLC ¶90-456; (1978) 32 FLR 481. Marriage Act 1961 (Cth) s 100.

38. 39.

Ibid s 104. See s 5(1) for the definition.

40. 41.

See the discussion of the Marriage Act case (Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529) at 4.12–4.13. See, for example, Oltman v Harper (No 2) [2009] FamCA 1360.

42. 43.

(1991) FLC ¶92-225; (1991) 103 FLR 384. Section 41.

44. 45.

(1998) 23 Fam LR 175; FLC ¶92-808; (1998) 146 FLR 323. See Moss v Moss [1897] P 263 at 267–8 per Jeune P.

46. 47.

See Moss v Moss [1897] P 263; and see J Jackson, Formation and Annulment of Marriage, 2nd ed, Butterworths, London, 1969. [1891] P 369.

48. 49.

Ibid at 376. Ibid at 376–7.

50. 51.

[1891] P 369. (1887) 12 PD 21.

52. 53.

Ibid at 23 per Butt J. [1962] NSWR 547.

54. 55.

[1961] VR 334. [1938] P 159.

56.

[1959] 1 All ER 1.

57.

[1954] P 258.

58. 59.

[1971] P 286. Ibid at 297.

60. 61.

(1980) 5 Fam LR 831; FLC ¶90-820; (1980) 42 FLR 94. (1980) 5 Fam LR 831 at 839.

62. 63.

[1975] AC 653 at 694. (1980) 5 Fam LR 831 at 837.

64. 65.

(1994) 18 Fam LR 844; (1995) FLC ¶92-578. (1994) 18 Fam LR 844 at 854.

66. 67.

Ibid, particularly at 852–3. Ibid at 853.

68. 69.

(2011) 44 Fam LR 405; (2011) 252 FLR 234. Ibid at [41].

70. 71.

Scott v Scott (1990) 26 VLR 588; Swift v Kelly (1835) 3 Knapp 257; 12 ER 648; Sullivan v Sullivan (1818) 2 Hag Con 238; 161 ER 728; C v C [1942] NZLR 356. (1835) 3 Knapp 257 at 293; 12 ER 648 at 661.

72. 73.

(1977) 7 Fam LN N3; FLC ¶90-252; (1977) 31 FLR 114. (1977) FLC ¶90-252 at 76,354.

74. 75.

Ibid at 76,355. (1977) 3 Fam LR 11,541; FLC ¶90-305; (1977) 29 FLR 308.

76. 77.

(1980) 5 Fam LR 831; FLC ¶90-820; (1980) 42 FLR 94. (2011) 44 Fam LR 405; (2011) 252 FLR 234.

78. 79.

(1977) FLC ¶90-252 at 76,355. (1986) 11 Fam LR 99; FLC ¶91-807.

80. 81.

(1986) 11 Fam LR 99 at 101–2. (1989) 13 Fam LR 441; (1990) FLC ¶92-107; (1989) 96 FLR 388.

82. 83.

(1989) 13 Fam LR 444; (1990) FLC ¶92-111; (1989) 96 FLR 362. (1991) 14 Fam LR 889; FLC ¶92-246; (1991) 104 FLR 403.

84. 85.

(1977) 7 Fam LN N3; FLC ¶90-252; (1977) 31 FLR 114: see 6.32. (1989) 13 Fam LR 444 at 447.

86.

87.

Ibid at 448. In this context, it is interesting to note that the High Court of Australia has held that spouses cannot generally sue each other in deceit over alleged paternity fraud: Magill v Magill (2006) 231 ALR 277. (1994) 18 Fam LR 581; FLC ¶92-579; (1994) 121 FLR 196.

88. 89.

[2011] FamCAFC 220 at [12], [16]. Ibid at [16], with reference to [2010] FCWA 130 at [22] per Crooks J.

90.

See, for example, Sullivan v Sullivan (1818) 2 Hag Con 238; 161 ER 728; Moss & Moss [1897] P 263. (1869) 6 WW & A’B (M) 45.

91.

92.

[1942] NZLR 356.

93. 94.

(1979) 5 Fam LR 636; FLC ¶90-636; (1979) 28 ALR 524; (1979) 35 FLR 340. In the case, he is referred to as being a ‘true hermaphrodite’.

95. 96.

(1979) 5 Fam LR 636 at 639. Hyde v Hyde & Woodmansee (1866) LR 1 P & D 130; Corbett v Corbett [1970] 2 All ER 33.

97.

For a detailed critical review of C & D, see HA Finlay, ‘Sexual Identity and the Law of Nullity’ (1980) 64 Australian Law Journal 116. (2003) 30 Fam LR 1; FLC ¶93-127; (2003) 172 FLR 300.

98. 99.

A Nicholson, ‘Sixteen Years of Family Law: A Retrospective’ (2004) 18 Australian Journal of Family Law 131 at 137, referring to a report in The Australian newspaper at the time of the announcement of the proposed amendment. A later note by P Parkinson, after the passage of the amendment, refers to the intent to stop recognition of same-sex marriages contracted overseas and to ‘affirm the parliament’s continuing commitment’ to a 1961 understanding of marriage: ‘Clarification of the Definition of Marriage’ (2004) 18 Australian Journal of Family Law 211. 100. Commonwealth Attorney-General, Second Reading Speech, House of Representatives, 27 May 2004, pp 29356–7; Commonwealth Department of Parliamentary Services, Marriage Legislation Amendment Bill 2004, Bills Digest, No 155, 2003–04, June 2004, pp 1–3, 12; Explanatory Memorandum, Marriage Legislation Amendment Bill 2004 (Cth), House of Representatives, 2004, pp 1–2. 101. The Commonwealth Attorney-General intervened at first instance and appealed that decision to the Full Court. 102. Mehta v Mehta [1945] 2 All ER 690. 103. Ford v Stier [1896] P 1; Kelly (orse Hyams) v Kelly (1932) 49 TLR 99. 104. Valier v Valier (orse Davis) (1925) 133 LT 830. 105. (1991) 14 Fam LR 889; FLC ¶92-246; (1991) 104 FLR 403. 106. Rabab v Rashad [2009] FamCA 69. 107. [1950] P 71. 108. Official Trustee in Bankruptcy v Edwards (1997) 21 Fam LR 829; FLC ¶92-763; (1997) 139 FLR 104. 109. Simpson-Morgan & Burreket [2009] FamCA 138. 110. Hill v Hill [1959] 1 All ER 281 at 283. 111. Turner v Meyers (1808) 1 Hag Con 414; 161 ER 600. 112. [1954] P 112. 113. [1959] 1 All ER 281. 114. [1954] P 112 at 127. 115. Durham v Durham (1885) LR 10 PD 80; Estate of Park; Park v Park [1954] P 112 at 133. 116. Estate of Park; Park v Park [1954] P 112 at 135 per Hodson LJ.

117. Saward v Saward [1963] Tas SR (NC) N17; [1964] ALR 1004; (1963) 5 FLR 28. 118. (1818) 2 Hag Con 238 at 246; 161 ER 728 at 746. 119. (1982) 8 Fam LR 1; FLC ¶91-232; (1982) 60 FLR 212. 120. (2003) 32 Fam LR 16; FLC ¶93-178. 121. (2003) 32 Fam LR 16 at 21. 122. Ibid. 123. Ibid. 124. Ibid at 39. See also Babich v Sokur [2007] FamCA 236. 125. See the analysis of Fogarty J in Re B (1983) 9 Fam LR 40; FLC ¶91-332. 126. See Pickering v Pickering (1978) 4 Fam LR 349; FLC ¶90-507; (1978) 35 FLR 1. 127. [1951] P 482. 128. Ibid at 492. 129. See A Nicholson, ‘Sixteen Years of Family Law: A Retrospective’ (2004) 18 Australian Journal of Family Law 131 at 131–2. 130. (1971) 17 FLR 127. 131. Ibid at 128, 130 per Selby J. 132. Second Reading Speech, Family Law Bill 1974 (Cth). 133. (1995) 18 Fam LR 550; FLC ¶92-582; (1995) 123 FLR 424. 134. (1995) 18 Fam LR 550 at 560–1. 135. [1907] VLR 64 at 65 per Cussen J. 136. (1949) 78 CLR 636. 137. Ibid at 642. 138. (1869) LR 1 P & D 694 at 697 per Lord Penzance. 139. [1923] P 18 at 21 per Duke P. 140. Quigley & Quigley (1976) 1 Fam LR 11,526 at 11,529 per Emery J; FLC ¶90-074. 141. Saunders v Saunders (1976) 1 Fam LR 11,477 at 11,480–1; FLC ¶90-096. 142. (1976) 1 Fam LR 11,186; FLC ¶90-008; (1976) 9 ALR 401; (1976) 25 FLR 260. 143. (1976) 1 Fam LR 11,186 at 11,188. 144. (1976) 10 ALR 259. 145. Ibid at 261–2. In this passage, the Full Court is restating, with two minor amendments, the judgment of Watson J in Marriage of Todd (No 2) (1976) 9 ALR 401 at 403. The passage in Marriage of Pavey was referred to with approval by the Full Court in Marriage of Falk (1977) 15 ALR 189 at 195–6. 146. Lane & Lane (1976) 1 Fam LR 11,385; FLC ¶90-055; Quigley & Quigley (1976) 1 Fam LR 11,526; FLC ¶90-074; Fenech & Fenech (1976) 1 Fam LR 11,250; FLC ¶90-035. 147. Tye & Tye (No 1) (1976) 1 Fam LR 11,235; FLC ¶90-028; Xuereb & Xuereb (1976) 1 Fam LN 9; FLC ¶90-029; cf Santos v Santos [1972] Fam 247 (UK). 148. Cf Pulford v Pulford [1923] P 18; McRostie v McRostie [1955] NZLR 631; Baily v Baily (1962) 3 FLR 476. 149. FLA s 49(1); cf Koufalakis v Koufalakis (1963) 4 FLR 310.

150. Marriage of Spanos (1980) 6 Fam LR 345 at 360; FLC ¶90-871. 151. (1986) 11 Fam LR 364; FLC ¶91-778. 152. (1986) 11 Fam LR 364 at 370. 153. (1976) 1 Fam LR 11,186; FLC ¶90-008; (1976) 9 ALR 401; (1976) 25 FLR 260. 154. (1976) 1 Fam LR 11,358; FLC ¶90-051; (1976) 10 ALR 259; (1976) 25 FLR 450. 155. (1977) 3 Fam LR 11,238; FLC ¶90-247; (1977) 15 ALR 189; (1977) 29 FLR 463. 156. Franks & Franks (1976) 1 Fam LR 11,341; FLC ¶90-032; cf Marriage of Whiteoak (1980) FLC ¶90-837. 157. Marriage of Batty (1986) 10 Fam LR 688; FLC ¶91-703; cf Tye & Tye (No 1) (1976) 1 Fam LR 11,235; FLC ¶90-028; Xuereb & Xuereb (1976) 1 Fam LN 9; FLC ¶90-029. 158. (1977) 3 Fam LR 11,238; FLC ¶90-247; (1977) 15 ALR 189; (1977) 29 FLR 463. 159. (1977) 3 Fam LR 11,238 at 11,244. 160. See Lane & Lane (1976) 1 Fam LR 11,385 at 11,389; FLC ¶90-055; Fenech & Fenech (1976) 1 Fam LR 11,250 at 11,251; FLC ¶90-035. 161. (1986) 10 Fam LR 688; FLC ¶91-703. 162. (1986) 10 Fam LR 688 at 694. 163. (1980) FLC ¶90-837. 164. (1976) 1 Fam LR 11,235; FLC ¶90-028. 165. (1986) 10 Fam LR 688 at 693; FLC ¶91-703. 166. (1980) 6 Fam LR 345; FLC ¶90-871. 167. See, for example, Aitken v Deakin [2010] FMCAfam 36 at [9]–[10]; Wilson v Wilson [2010] FMCAfam 436 at [38]. 168. [2003] FMCAfam 104. 169. For a further example, see W & W [2003] FMCAfam 82, especially at [41] where, while there was no communication, there was also insufficient evidence to establish the intention to separate had been formed. 170. (2009) 41 Fam LR 614. 171. Ibid at 648. 172. (1997) 22 Fam LR 510; (1997) FLC ¶92-773; (1997) 139 FLR 273. 173. Marriage of D (2001) 27 Fam LR 736 at 738. 174. Price v Underwood (Divorce Appeal) (2009) 41 Fam LR 614 at 653. 175. Sterling v Sterling & Protective Commissioner [2000] FamCA 1150; Stanford v Stanford (2011) 46 Fam LR 240. See also Stanford v Stanford (2012) 47 Fam LR 105. 176. (2012) 247 CLR 108. 177. (1976) 1 Fam LR 11,358; FLC ¶90-051. 178. (1977) 3 Fam LR 11,238; FLC ¶90-247. For discussion of the implications of involuntary separation by ill health for couples and their property, see Robyn Carroll, ‘Family Law, Involuntarily Separated Couples and their Property’ (2015) 33 Law in Context 87. 179. (1989) 13 Fam LR 804; (1990) FLC ¶92-121; (1989) 99 FLR 155.

180. [1923] P 18 at 21. 181. [1949] P 227. 182. Ibid at 234 per Bucknill LJ. 183. (1949) 78 CLR 636. 184. Ibid at 641–2. 185. (1952) 86 CLR 161. 186. Ibid at 167. 187. Potter v Potter (1954) 90 CLR 391; Shindler v Shindler (1956) 31 ALJR 73. 188. Murphy v Murphy (1961) 2 FLR 363; Crabtree v Crabtree (1963) 5 FLR 307; Johnson v Johnson [1964] VR 604. 189. (1963) 5 FLR 307. 190. [1972–73] ALR 893. 191. [1907] VLR 64. 192. [1972–73] ALR 893 at 896. 193. (1976) 1 Fam LR 11,101; FLC ¶90-004; (1976) 9 ALR 8. 194. (1976) 1 Fam LR 11,186; FLC ¶90-008; (1976) 9 ALR 401; (1976) 25 FLR 260. 195. Marriage of Pavey (1976) 1 Fam LR 11,358; FLC ¶90-051; (1976) 10 ALR 259; (1976) 25 FLR 450. 196. (1976) 1 Fam LR 11,358 at 11,362. 197. Ibid at 11,364. 198. (1938) 60 CLR 336. 199. Ibid at 361–2. 200. [2010] FMCAfam 435 at [60]. 201. (1977) 3 Fam LR 11,238; FLC ¶90-247. 202. (1977) 3 Fam LR 11,144; FLC ¶90-219. 203. (1977) 2 Fam LR 11,524; FLC ¶90-203. 204. (1977) 3 Fam LR 11,374; FLC ¶90-270. 205. P Nygh, Guide to the Family Law Act, 4th ed, Butterworths, Sydney, 1986, [625]. 206. (1977) 3 Fam LN 71; FLC ¶90-319. 207. Thompson & Thompson (1977) 2 Fam LR 11,649; FLC ¶90-206. 208. (1977) 2 Fam LR 11,665; FLC ¶90-212. 209. Spanos & Spanos (1980) 6 Fam LR 345; FLC ¶90-871. 210. Marriage of Clarke (1986) 11 Fam LR 364 at 370 per Lindenmayer J; FLC ¶91-778. 211. Introduced into that Act by an amendment made by the Matrimonial Causes Act 1965 (Cth). 212. (1976) 1 Fam LR 11,562; FLC ¶90-075. 213. This particular provision also applied to the equivalent clause in the Matrimonial Causes Act 1959 (Cth) s 41A(4). 214. (1986) 11 Fam LR 364; FLC ¶91-778.

215. (1984) 9 Fam LR 576; FLC ¶91-503. 216. No 98, 2005, Sch 1, Pt 10. This came into effect on 3 August 2005. 217. See the comments of Senator Ludwig on Wednesday 11 May 2005 at p 32 of Hansard for that day. 218. [2010] FamCAFC 133. 219. (2009) 41 Fam LR 614; (2009) 231 FLR 308; [2009] FamCAFC 127. 220. R v O’Brien [1974] 3 All ER 663; cf Fender v St John-Mildmay [1938] AC 1. 221. (1977) 3 Fam LR 11,131; FLC ¶90-222. 222. (1953) 89 CLR 129. 223. Ibid at 135. 224. (1977) 3 Fam LR 11,131 at 11,135. 225. (1978) 4 Fam LR 52; FLC ¶90-414 per Yuill J. 226. (1983) 9 Fam LR 10; FLC ¶91-328. 227. (1983) 9 Fam LR 10 at 19. 228. Ibid at 20. 229. (1990) 14 Fam LR 195; FLC ¶92-151. 230. (1995) 19 Fam LR 468; FLC ¶92-628. 231. (1995) 19 Fam LR 468 at 473. The judgment also cites a UK decision, Callaghan v Andrew-Hanson [1992] 1 All ER 56, as further authority. 232. (2009) 41 Fam LR 614; 231 FLR 308; [2009] FamCAFC 127. 233. (2008) 39 Fam LR 614; [2008] FamCAFC 46. 234. (2009) 41 Fam LR 614 at 662–3; [2009] FamCAFC 127. 235. (2009) 41 Fam LR 614 at 663. 236. Ibid at 634. 237. (1980) 6 Fam LR 1; FLC ¶90-841. 238. (1980) 6 Fam LR 1 at 5. 239. Cf Marriage of Schmidt (1976) 1 Fam LR 11,355. 240. (1978) 4 Fam LR 135; FLC ¶90-432. 241. Cf Marriage of Opperman (1978) 4 Fam LR 135 at 151. 242. Ibid. 243. (1999) 25 Fam LR 579; FLC ¶92-871. 244. (1990) 14 Fam LR 136; FLC ¶92-150. 245. (1999) 25 Fam LR 579 at 587–8. 246. See Moore v Moore (1973) 21 FLR 390 at 394 per Hutley JA; Opperman v Opperman (1978) 4 Fam LR 135 at 151; FLC ¶90-432; and the discussion of these cases in CCH, Australian Family Law and Practice, [6-780]. 247. CCH, Australian Family Law and Practice, [6-735]. 248. (1984) 9 Fam LR 634 at 638; FLC ¶91-529. 249. (1990) 14 Fam LR 105; FLC ¶92-144.

250. [2010] FamCA 217. 251. (1990) 14 Fam LR 105 at 110. 252. (1976) 2 Fam LR 11,341; FLC ¶90-117. For another example, see H & C [2003] FMCAfam 329, where a decree nisi was rescinded by reason of the parties’ perjury as to the fact of separation. 253. (1976) 2 Fam LR 11,341 at 11,347. 254. (1983) 9 Fam LR 924; FLC ¶91-368. 255. (1976) 1 Fam LR 11,355; FLC ¶90-052. 256. See now s 55 as to when a divorce order takes effect. 257. Cf Leonards v Leonards [1961] VR 334. 258. Ibid; Schmidt v Schmidt (1976) 1 Fam LR 11,355; Pickering v Pickering (1978) 4 Fam LR 349; FLC ¶90-507. 259. See, for example, Folston v Folston [2009] FamCA 1118. 260. See Re B (1983) 9 Fam LR 40; FLC ¶91-332; Hooshmand & Ghasmezadegan (2000) FLC ¶93-044; Buciu v Sabau (1997) 22 Fam LR 75; FLC ¶92-765; Nygh v Kasey [2010] FamCA 145. 261. See Espie & Espie (1983) 9 Fam LR 123; FLC ¶91-347. Note that the need to use a declaration as to the validity of a patently valid overseas divorce, solely as a device to attract Australian jurisdiction in relation to ancillary property proceedings, was obviated with the introduction of para (ca)(iii) of the definition of matrimonial cause in s 4 of the FLA: cf Espie; Cain & Cain (1987) 11 Fam LR 540; FLC ¶91-808. 262. (2007) 36 Fam LR 488. 263. Ibid at 500. 264. (1991) 14 Fam LR 883; FLC ¶92-245. 265. (1991) FLC ¶92-245 at [78,666]. 266. Ibid at [78,667]–[78,668]. 267. Anthony Dickey, ‘Two Questions Concerning Repeat Marriage Ceremonies’ (1991) 65 Australian Law Journal 409 at 410. 268. [2015] FamCA 873 at [20]. 269. (2003) 30 Fam LR 1; FLC ¶93-127. 270. See the discussion of this case at 4.25. 271. (1979) 5 Fam LR 636; FLC ¶90-636; 28 ALR 524; (1979) 35 FLR 340. 272. Cf FLA ss 4(2), 60E, 60F(2)(a), 71; and see 4.12. 273. (1962) 107 CLR 529. 274. Ibid at 556. 275. P Nygh, Guide to the Family Law Act, 4th ed, Butterworths, Sydney, 1986, pp 289ff; MC Pryles, Conflicts in Matrimonial Law, Butterworths, Sydney, 1975, Ch 1. 276. (1866) LR 1 P & D 130. 277. [1963] VR 203. 278. (1977) 2 Fam LR 11,596; FLC ¶90-201.

279. (1977) 3 Fam LR 11,441; FLC ¶90-280. 280. (1977) 3 Fam LR 11,466; FLC ¶90-307. 281. See, for example, Davies v Richardson [2011] NSWSC 810. 282. For example, see Moby v Schulter (2010) FLC ¶93-447; Truman & Clifton [2010] FCWA 91. 283. Transition arrangements allow eligible couples to ‘opt in’ to the new regime: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Sch 1, s 86A. 284. See Keaton v Aldridge (2009) 223 FLR 158 at [30] per Pascoe CFM; [2009] FMCAfam 92. 285. By virtue of the operation of s 36(1) (Item 6) of the Acts Interpretation Act 1901 (Cth), the two-year period provided in s 44(5) of the FLA starts on the day after the relationship ends: Madin & Palis [2015] FamCAFC 65 per Finn, May and Strickland JJ. 286. (2011) 46 Fam LR 229 at [48]; 254 FLR 49; [2011] FamCAFC 202. 287. See, for example, D v McA (1986) 11 Fam LR 214; DFC ¶95-030; Roy v Sturgeon (1986) 11 Fam LR 271; DFC ¶95-031; Wilcock v Sain (1986) 11 Fam LR 302; DFC ¶95-040. 288. [2011] NSWSC 810. 289. Ibid at [8]. 290. [2009] FMCAfam 1017. 291. Ibid at [18]. 292. [2011] FamCA 434. 293. Ibid at [11]. 294. [2011] FamCA 436. 295. Ibid at [13]. See also Volen & Backstrom [2013] FamCA 40. 296. (1989) 12 Fam LR 725 at 740; DFC ¶95-064. 297. Ibid at 740. For further discussion of the final point made here by Mahoney JA, see 6.119. 298. (2004) 32 Fam LR 429; [2004] QCA 449. 299. (2004) 32 Fam LR 429 at 439. 300. Ibid. 301. Smyth & Pappas [2011] FamCA 434 at [11]. See also Truman & Clifton [2010] FCWA 91 at [358], in which Thackray CJ applied the same distinction in ascertaining whether a de facto relationship has broken down for the purposes of Pt VA of the Family Court Act 1997 (WA). 302. H & P [2011] WASCA 78 at [68] per Murphy J. 303. Moby v Schulter (2010) FLC ¶93-447; Volen & Backstrom [2013] FamCA 40. 304. Jonah v White (2012) FLC ¶93-522; Sinclair v Whittaker (2013) FLC ¶93-551; Cadman v Hallett (2014) FLC ¶93-630. 305. [2011] FamCA 434.

306. Ibid at [6]. 307 Smyth & Pappas [2011] FamCA 434 at [11]. See also Truman & Clifton [2010] FCWA 91 at [358]. 308. Hibberson v George (1989) 12 Fam LR 725 at 740 per Mahoney JA; Moore v Smith (1984) DFC ¶96-148 at 77,118 per McLelland CJ in Eq. 309. (2004) 32 Fam LR 429; [2004] QCA 449; applied in Clisbey & Viges [2011] FamCA 611 per Stevenson J. 310. (2004) 32 Fam LR 429 at 439. 311. [2009] FMCAfam 1017. 312. Ibid at [23]. 313. [2011] FamCA 436 at [13]. 314. See, for example, Cadman v Hallett (2014) FLC ¶93-630 at 79,477. 315. Ibid. 316. [2011] FamCA 436 at [69], [70]. 317. Aitken & Deakin [2010] FMCAfam 35. See also Kelly v Temple [2011] FMCAfam 683. 318. Vaughan & Bele [2011] FamCA 436; Clisbey & Viges [2011] FamCA 611; Volen & Backstrom [2013] FamCA 40. See also J Behrens, ‘“De Facto Relationship”? Some Early Case Law under the Family Law Act’ (2010) 24 Australian Journal of Family Law 350 at 354–5. 319. [2011] FamCA 611. 320. Ibid at [68]. 321. Smyth & Papas [2011] FamCA 434 at [12]. 322. [2011] FamCA 434. 323. (2011) 46 Fam LR 229 at [24]; 254 FLR 49; [2011] FamCAFC 202. 324. (2011) 46 Fam LR 229 at [23]. 325. Ibid at [26]. 326. LeMay v Clark [2005] FCWA 23; Truman & Clifton [2010] FCWA 91. 327. (2010) FLC ¶93-447 at [168]. See also Smyth & Papas [2011] FamCA 434 at [8]. 328. (2010) FLC ¶93-447 at [174]. 329. See, for example, Re Fagan (dec’d) (1980) 5 Fam LR 813 at 822 per Jacobs J; D v McA (1986) 11 Fam LR 214 at 228 per Powell J; Truman & Clifton [2010] FCWA 91 at [348]–[352] per Thackray CJ. 330. Section 4AA(5) states that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. 331. Moby v Schulter (2010) FLC ¶93-447. 332. Ibid at [181]. 333. Neither does ‘breakdown’ as defined by the Act include a breakdown of the marriage by reason of death: s 4(1). 334. Civil Partnerships Act 2008 (ACT) ss 9(2), 10, 11; Relationships Act 2003 (Tas) ss 16–17; Relationships Act 2008 (Vic) ss 12–16.

See generally, O Rundle, ‘An Examination of Relationship Registration Schemes in 335. Australia’ (2011) 25 Australian Journal of Family Law 121 at 142–5. 336. Ibid at 143. 337. Relationships Registration Act 2010 (NSW) Pt 3; Relationships Act 2008 (Vic) ss 12– 15. 338. Relationships Registration Act 2010 (NSW) s 10; Relationships Act 2003 (Tas) s 15(1); Relationships Act 2008 (Vic) s 11(1). 339. Relationships Act 2003 (Tas) s 18. 340. Relationships Registration Act 2010 (NSW) Pt 3; and see s 4(1) for definition of ‘Registrar’. 341. Relationships Act 2008 (Vic) s 16. See also s 65 (‘A person may apply to — (a) the Supreme Court; or (b) the County Court; or (c) the Magistrates’ Court — for an order or relief under this Part.’). 342. Relationships Act 2003 (Tas) ss 16–17. 343. Ibid s 9(1). 344. Ibid s 9(2). 345. Civil Partnerships Act 2008 (ACT) s 10. 346. Ibid s 11.

[page 386]

7 PARENTAGE ___________________________

Introduction 7.1 Before considering how parenting disputes are resolved, which is the subject of the next two chapters, we first need to consider when parentage exists. For obvious reasons, in former times questions of parentage focused on paternity, with issues of inheritance playing a significant role in how that question was answered by the legal system (which was of course designed and implemented by rich men). With the advent of assisted conception procedures, the demand for broad-based access to these procedures (eg for same-sex couples), the interest in surrogacy arrangements, the ability to freeze embryos, and scientific developments such as mitochondrial donation, many new and fascinating legal issues have emerged. We will only touch on these issues as they relate to family law but, as this chapter shows, this is likely to be an area of increasing significance in the future.

Status of children 7.2

In the context of this chapter, when we discuss the ‘status’

of children we are referring to the status that the law bestows upon children depending on the marital status of their parents at the time of the child’s conception.

Historical background 7.3 Let us look back, first, to a time when technology did not feature in discussions of parentage. At common law, a distinction was traditionally drawn between children who were born of married parents and those who were not. Just as de facto relationships were formerly legally unrecognised (and even penalised in law as being contrary to public policy), so too were children born ex-nuptially treated as second-class citizens, both legally and socially. At common law they were called ‘bastards’ and ‘illegitimate’. The Latin term ‘filius nullius’ meant that an illegitimate child was nobody’s child.1 For producing such a child, both the [page 387] mother and the putative father had to be punished.2 As the extracts from Acts dating back to Elizabethan and Jacobean times show, the purpose of the penalties meted out to these social malefactors was to relieve the parish of the costs of looking after their progeny. This was the real meaning of filius nullius: that no one was legally responsible for looking after the child, who would become a charge on the parish unless someone could be made liable. However, there were many good reasons why a father might not own up to paternity of a child. The consequences of illegitimacy became more severe during the course of the eighteenth century. Whereas previously the only legal disability that illegitimate children were subject to was the

inability to inherit from their parents, in the second half of the eighteenth century, the legal disability of illegitimate children was extended to other areas.3 According to Blackstone, ‘a bastard, by our English law, is one that is not only begotten, but born, out of lawful matrimony’.4 He points out that, whereas in civil and canon law a child became legitimate if the parents afterwards married, common law did not permit this form of legitimation of a child not born within marriage. The process of legitimatio per subsequens matrimonio, as it was called, did not become a part of English law until the Legitimacy Act 1926 (UK), though in the Australian colonies or states, following (as they did so often) in the footsteps of New Zealand, it became part of the law between 1898 and 1909. In the Marriage Act case,5 the High Court upheld this principle as part of the Marriage Act 1961 (Cth) (s 89): see 4.12. 7.4 The determination of a person’s legitimacy ultimately came down to a matter of evidence, but this was assisted by the presumption of paternity or legitimacy: pater est quem nuptiae demonstrant. This presumption attributed paternity of a married woman’s child to her husband. The presumption was initially very strong and could only be rebutted by proof beyond reasonable doubt, having regard to the legal and social consequences to which the status of illegitimacy subjected a person. It could, for example, be rebutted where the husband and wife were separated at the time of conception. In more recent times, however, the standard of proof has been held to be the civil standard; that is, on the balance of probabilities, but subject to the proviso that having regard to the gravity of the allegation, proof should be reasonably satisfactory.6 [page 388]

Status of children legislation

7.5 As a result of changes in social attitudes and policy, legislation was passed commencing in the mid-1970s that removed the legal distinction between legitimate and illegitimate children. This ‘status of children legislation’7 followed the New Zealand model: Status of Children Act 1969 (NZ). The long title of the New Zealand Act was ‘An Act to remove the legal disabilities of children born out of wedlock’. Western Australia did not follow the same pattern as the other states and territories, but achieved substantially the same effect by making specific amendments to particular statutes to equate the position of ex-nuptial children with that of children of a marriage.8 The scope and intent of the status of children legislation is expressed, for example, in s 3(1) of the Status of Children Act 1974 (Vic): For all purposes of the law of Victoria the relationship between every person and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly.

It is now well settled that the effect of this key provision, which appears in each of the Acts, is to make all children of equal status for most purposes of state and territory law, irrespective of their parents’ marital status.9

Establishing parenthood 7.6 Each of the state and territory Acts contains presumptions of parentage as well as provisions governing the establishment of parentage. Prior to the referral of powers over ex-nuptial children by the states to the Commonwealth between 1986 and 1990 (see 4.89–4.91), the provisions of the state and territory status of children legislation were of limited practical significance to family law as the Family Court’s jurisdiction only applied to ‘children of the marriage’. However, since the implementation of the referral

of powers, all children (with the exception of those in Western Australia, which has not participated in the referral of powers) come within the jurisdiction of the Family Law Act 1975 (Cth) (FLA), which contains its [page 389] own provisions dealing with presumptions of parentage. As a result, a single law applies for the determination of parentage for the purposes of proceedings under Pt VII of the FLA. In Western Australia, the Family Court Act 1997 (which applies to ex-nuptial children as well as the children of married couples) replicates the parentage presumptions found in the FLA.10 The provisions in state and territory legislation continue to have a residual operation for the purposes of proceedings arising under state or territory law; for example, in relation to inheritance and family provision.

Presumptions of parentage under the FLA 7.7 The role of the parentage presumptions under the FLA is to assist the courts in determining questions of parentage in circumstances where there is no direct evidence of parentage in the form of DNA testing before the court. In the context of seeking to rebut a presumption arising under the Act (eg that a husband is the father of his wife’s children), or in circumstances where no presumption arises (eg where a child is conceived following a casual relationship), parentage evidence may be adduced to establish, as a matter of fact, who the parents are or, as is most frequently the case, who the father of the child is. Prior to the development of DNA testing, these presumptions were of utmost importance in determining parentage. However, today the purpose

of these presumptions is to place the onus of proof on the person who seeks to rebut these presumptions. In addition to the presumptions outlined below, there are also provisions deeming parentage of children contained in s 60H of the FLA, in respect of children born as a result of assisted conception procedures, and in s 60HB, in respect of children born via surrogacy arrangements. These are dealt with at 7.17–7.19 and 7.45. 7.8 The presumptions of parentage under the FLA are contained in Subdiv D of Div 12 in Pt VII. They comprise: a presumption of parentage arising from marriage (s 69P); a presumption of paternity arising from cohabitation (s 69Q);11 a presumption of parentage arising from registration of birth (s 69R); presumptions of parentage arising from findings of courts (s 69S); and a presumption of parentage arising from acknowledgments (s 69T). The presumptions arising from a birth registration (s 69R) or a finding of a court (s 69S) will only apply to children born overseas if the jurisdiction is a ‘prescribed [page 390] overseas jurisdiction’.12 No overseas jurisdiction is prescribed for the purposes of s 69R13 or s 69S.14 With the exception of a presumption of parentage arising under s 69S(1) (as a result of a finding of a court made during a person’s lifetime) which is conclusive,15 these presumptions of parentage (including a finding of court in a reciprocating jurisdiction: s 69S(1A)) are rebuttable by proof on the balance of probabilities: s

69U(1). Where there are conflicting presumptions, s 69U(2) leaves it to the court to apply the presumption that appears to be the more likely. The court may in appropriate circumstances make a ‘parentage testing order’, the results of which may rebut these presumptions,16 but the court will not always make such an order: see 7.10–7.14. The general presumptions of parentage may also be rebutted through evidence linked to the sections that relate to children conceived through assisted conception procedures:17 see 7.15–7.18. 7.9 The court may make a finding that a person is the parent of the child. If it does so, it may also make a declaration that a person is a parent of the child. Such a declaration is ‘conclusive evidence of parentage for the purposes of all the laws of the Commonwealth’ (s 69VA): see 7.10ff. To enable the Registrar of Child Support to identify a person as a parent of a child and thus liable for child support, the Child Support Assessment Act 1989 (Cth) also contains six presumptions of parentage and three presumptions of paternity.18 [page 391]

Parentage evidence 7.10 The issue of parentage evidence is dealt with in Subdiv E of Pt VII Div 12 of the FLA. Section 69V sets out the court’s general power, in circumstances where the parentage of a child is a question in issue in proceedings under the FLA, to make an order requiring any person to give such evidence as is material to the question. Section 69VA goes on to say that, in addition to determining parentage, the court may issue a conclusive declaration as to parentage.19 Without detracting from the generality of s 69V (see s 69W(5)), the Act confers on the court

specific power to make orders for the carrying out of parentage testing procedures (a ‘parentage testing order’) if the parentage of a child is a question in issue in proceedings; that is, there must be proceedings under the FLA: s 69W. The authorities set out two hurdles for the test of whether parentage is a question in issue in the proceedings: it must be relevant to the proceedings (in other words the proceedings must relate to a parenting order or child support); and there must be evidence that places the parentage of the child in doubt:20 see further discussion at 7.11. (As to the persons in respect of whom a parentage order can be made, see s 69W(3).) Such an order can be made on the court’s own initiative, or on the application of either a party to the proceedings, or an independent children’s lawyer representing the child’s interests under an order made under s 68L: see s 69W(2). By virtue of s 69X, the court can make such other orders as it considers necessary or desirable to enable the parentage testing procedure to be carried out or to make the parentage testing procedure more effective or reliable. The carrying out of parentage testing procedures under a parentage testing order and the preparation of reports with regard to those procedures is dealt with under Pt IIA of the Family Law Regulations 1984 (Cth), which was enacted under s 69ZB of the FLA.21 7.11 It is clear that applicants cannot expect the Family Court to automatically make the orders for parentage testing that they seek. As the wording of both ss 69V and 69VA suggest, the parentage of the child must be a question in issue in the proceedings: Marriage of Diggins.22 In the 1992 case of Marriage of F & R,23 this approach was endorsed and it was held that an applicant must have an honest, [page 392] bona fide and reasonable belief that there is a doubt as to the

child’s paternity before a parentage order will be made. This formulation has since been endorsed by the Full Court of the Family Court in Duroux v Martin.24 Equally, the court will not issue a declaration as to parentage under s 69VA unless there are already proceedings on foot where parentage is at issue.25 More recently, in Bima26 Berman J confirmed that s 69VA is not a stand-alone power, and in order for a declaration of parentage to be made there needs to be an application or dispute before the court in relation to parentage. His Honour concluded that the matter was before the court not because of issues pertaining to family law, but rather because of issues relating to immigration. It is not settled whether a declaration may be made in favour of a biological parent who is not a legal parent and, conversely, a legal parent who is not a biological parent. In Aldridge & Keaton27 the Full Court expressed a view in obiter that a declaration of parentage pursuant to s 69VA is limited to a biological parent. 7.12 Older cases suggest that the best interests of the child is the paramount consideration if the proceedings are for a parenting order and is a relevant consideration if the proceedings are not for a parenting order (eg child support proceedings): Duroux v Martin; F v Z.28 However, in Tryon & Clutterbuck,29 Coleman J (sitting as a Full Court) held that an order for parentage testing was itself a parenting order, and that the best interests of the child is the paramount consideration whenever a parentage testing order is sought. This issue was discussed but not determined by the Full Court in Tryon v Clutterbuck (No 2)30 and in Brianna v Brianna.31 The matter has since been resolved with the insertion of a sentence at the end of s 64B(1) stating that orders and declarations under Div 12 Subdiv E are not parenting orders.32 Where parentage testing has been carried out and has identified a person as the likely father of a child, there is no onus on the mother to adduce evidence to exclude the possibility that someone else might be the father instead.33 In JFL & TP,34 it was held that the importance of parentage and the support of children

was so great that, provided new evidence was available, there was no bar to a [page 393] previously unsuccessful applicant bringing a fresh application for a parentage testing order. In Brianna v Brianna35 the Full Court upheld the making of a parentage testing order even though the mother opposed the order because the child was unwilling to participate in the procedure. Such an order was made on the basis of ‘the interests which all children have in knowing their true parentage’.36 7.13 Contravention by an adult person of a parentage testing order does not render that person liable to any penalty in relation to that contravention (s 69Y(1)); however, the court may draw such inferences from the contravention as appear just in the circumstances: s 69Y(2). See, for example, Re C (No 2)37 (decided under the former section, s 66W(5)), where it was held to be appropriate to draw an inference adverse to the respondent in circumstances where he refused to undergo further testing after evidence of an earlier test had been ruled inadmissible on technical grounds. The question of drawing adverse inferences was later considered by the High Court in the 1994 case of G v H,38 where an appeal from a decision of the Full Court of the Family Court was dismissed. The alleged father in that case refused to undergo parentage testing in view of the fact that the child’s mother had, at around the time of conception, been working as a sex worker with three to six clients a day, four to five days a week. The majority, comprised of Deane, Dawson and Gaudron JJ (Brennan and McHugh JJ concurring in the result but on somewhat different grounds), held that the inference with which this particular provision is concerned (then s 66W(5); currently s

69Y(2)) is that to be drawn from the contravention of an order requiring a parentage testing procedure to be carried out. It is not an inference to be drawn from the reasonableness, or otherwise, of the refusal to submit to testing or the explanation, if any, proffered for that refusal. Their Honours went on to hold that any inference to be drawn will depend on the circumstances of the particular case and must be consistent with the evidence and findings. They stated that, as a general rule, there will be an inference as to the state of mind of the person who has contravened the order and another as to the question of whether he or she is the parent of the child concerned. In this case, it could be inferred in relation to the appellant’s state of mind that he would rather take the risk of being held to be the father and liable for child support than submit to a test that would effectively disclose whether he was the father or not. Further, it was found that the just inference to be drawn from the appellant’s failure to provide the necessary evidence was that it was more probable than not that the outcome of the test would establish that he was the father. A more recent [page 394] example of the application of these provisions is Tryon v Clutterbuck (No 2),39 where the applicant Clutterbuck alleged that he was the father of two of the five children who were known as children of the Tryons, a husband and wife. Parentage testing was ordered. The Tryons did not participate in the testing, nor did they facilitate the children doing so. Further, the wife did not deny Clutterbuck’s allegations, nor did she provide contrary affidavit evidence or make herself available for cross examination. The federal magistrate rejected the Tryons’ excuse for failure to undergo testing, drew an inference that Clutterbuck was the father of the two children and made a declaration of parentage. The Full

Court (Warnick, Strickland and Finn JJ) dismissed an appeal against this finding. 7.14 Parentage testing orders with respect to children can only be carried out with the consent of the parent or guardian of the child, or a person who, under a parenting order, is responsible for the child’s long-term or day-to-day care, welfare and development: s 69Z(2). Once such consent is given, s 69ZA provides legal protection for persons carrying out the testing. Section 69Z(2) has been criticised on the grounds that it takes no account of the wishes of children as to whether or not they are subject to a parentage test.40 Since DNA testing became available, the question has arisen as to whether parentage testing orders can be obtained where the alleged parent is dead. First, it will be unusual for there to be proceedings on foot under the FLA once one parent is dead. Even if there were, the court only has the power to make orders against, and order samples to be taken from, living persons, not human remains. Second, even if a sample is taken and parentage established, if the test is not carried out as the result of a parentage testing order, then the evidence is inadmissible.41 Parentage may be an issue in other proceedings, such as in relation to inheritance, and in that case one would need to refer to the relevant state or territory laws on parentage testing.

Assisted conception 7.15 The advent of in-vitro fertilisation (IVF) is among the greatest and most revolutionary of inventions, affecting men, women and children in their most intimate lives. Through the use of IVF, it is possible for a female ovum to be taken from a woman’s body, fertilised outside her body in a glass dish (in vitro) with the use of sperm from either her husband or partner or a donor, and implanted either into her own body or into the body of another

woman. A much older practice, but closely related and raising some of the same theoretical issues, is the practice of assisted insemination. This very simple technique involves the sperm [page 395] of a man being introduced into the body of a woman by means other than sexual intercourse, with the aim of making the woman pregnant. There are a number of assisted conception procedures, including assisted insemination (by partner or by donor) and gamete intra-fallopian transfer (GIFT), whereby gametes (sperm and ova) are fertilised in the fallopian tubes after their insertion.42 7.16 Two scientific developments have had a major influence on the law of parentage: reproductive technology and genetic testing. The birth of children through assisted conception procedures has brought into sharp focus the question of who is regarded as the legal parent of a child. The very nature of these procedures means that parentage may be fragmented between biological and social parents (ie parents that are not biologically related to the child). Genetic testing is capable of piercing the fictional bubble of social parenthood and accurately pinpointing biological parentage. The practice of IVF is potentially much more problematic than, say, assisted insemination, as it has opened up a whole range of possible genetic combinations from which different legal consequences could flow. One of the main reasons IVF creates serious problems for the common law is that it calls into question the legal maternity of the child, something which before the advent of IVF was always thought of as the one known factor in parentage cases, except where there had been a substitution of a baby. However, because of the possibility of a fertilised ovum from one woman being implanted in another woman, common law principles — which assume that a child is the child of those persons from whom the

genetic material is derived — are completely inadequate in dealing with the new reproductive possibilities. A surrogacy arrangement allows for further fragmentation of parentage, as it will include the surrogate and her partner (if she has one). The issue of surrogacy has become even more complex, with single men and homosexual male couples using surrogacy. Surrogacy is particularly controversial and is discussed in more detail at 7.37–7.58. The law, at a state and federal level, has reacted to these scientific advancements and social developments by enacting a number of provisions whereby non-biological parents may be regarded as legal parents and biological parents may not.

Legislative solutions 7.17 Due to the inadequacy of the common law, legislation that makes special provision for the legal status of children born as a result of assisted conception [page 396] procedures was introduced at both the Commonwealth and state and territory levels in Australia. Commencing in the 1980s, the states and territories passed legislation regulating the parentage of children born through assisted conception and in 1983 similar provisions were included in the federal FLA.43 Initially, the provisions applied only to heterosexual married couples. They were later extended to include heterosexual de facto couples and finally, following persistent calls to provide equality of treatment for same-sex couples, to same-sex couples.44 In 2008, s 60H — the section of the FLA that deals with the parentage of children born through an ‘artificial conception45 procedure’ (defined in s 4) — underwent significant amendment in that it was broadened to

include female same-sex couples.46 Section 60H also gives effect to parentage presumptions under prescribed laws of the Commonwealth, or of a state or territory: s 60H(1)(b)(ii), (2)(b) and (3).47 This means that if a person is recognised as a parent of a child for state and territory purposes, they will be recognised as a parent for FLA purposes. 7.18 Section 60H identifies the parents of a child born as a result of an ‘artificial conception procedure’. Parentage is based on the birth mother and her consenting partner (male or female) being regarded as the legal parents of the child irrespective of genetic connection. According to s 60H(1), if a child is born to a woman as a result of an artificial conception procedure while she was married to, or the de facto partner of, another person, provided the procedure was carried out with the consent of her partner, the child is deemed to be the child of the woman and her husband or de facto partner. Consent to the procedure is presumed, but this presumption is rebuttable on the balance of probabilities: s 60H(5). De facto partners are those people (including same-sex couples) in a ‘de facto relationship’ as defined in s 4AA (see 5.94–5.103) or as evidenced by registration under a prescribed state or territory law: s 60EA. [page 397] This means that the partner in a lesbian relationship who has no biological relationship with the child will be regarded as a parent of a child born through assisted conception provided: the parties were in a de facto relationship at the time of conception; and both parties consented to the procedure. If these conditions are satisfied, the child will have two legal parents, both of whom may be female (see the discussion below at

7.19). These provisions operate retrospectively in that they apply to children born before, on or after the commencement of those provisions. An interesting scenario arose in Crisp & Clarence,48 where embryos using Crisp’s eggs were implanted in Clarence. Berman J found that as the parties were living in a de facto relationship at the time of conception and beyond, they were both the parents of the child. 7.19 The amendments to s 60H have caused significant problems in interpretation. In Keaton v Aldridge,49 a child conceived through assisted conception procedures was born to a woman living in a same-sex de facto relationship. The court was required to determine whether the partner of the birth/biological mother was a parent under the FLA. Pascoe CFM held that the operative time when parties must be in a de facto relationship is the time of conception. Applying the criteria set out in s 4AA of the FLA, the court concluded that, at the time of conception, the parties were not in a de facto relationship and thus the partner of the birth mother was not considered a parent pursuant to the FLA.50 Parenting orders were nevertheless made for the partner to spend time with the child. The birth mother appealed against the parenting orders, but the appeal was dismissed. In the course of their judgment dismissing the appeal against the parenting orders, the Full Court of the Family Court (Bryant CJ, Boland and Crisford JJ) noted inobiter that s 60H(1) of the FLA does not refer to a ‘parent’ or ‘co-parent’, but uses the terminology ‘other intended parent’. Furthermore, this terminology is at odds with the definition of ‘parent’ contained in s 4 of the FLA, as well as ss 69VA and 69R. While acknowledging that the use of the words ‘other intended parent’ casts some doubt on whether the ‘other intended parent’ is a parent for the purposes of the FLA, a purposive approach was adopted to the interpretation of the legislation in order to reflect that all children, irrespective of their mode of conception, have a right to receive proper parenting from

their birth/biological parent as well as the partner of the birth/biological parent, including a same-sex parent. Such a [page 398] right exists irrespective of the circumstances of the child’s conception or birth.51 The Full Court also noted that the legislation might require further amendment.52 Nevertheless, in Connors & Taylor, Watts J noted that while it would have been better if the basal definition of ‘parent’ in s 4 had been amended, this does not affect the ‘clear wording’ contained in s 60H(1)(c) declaring the child to be the child of the biological parent and the ‘other intended parent’.53

Known donors under the FLA 7.20 Legislation has also been enacted in all states and territories to deal with the legal issues resulting from assisted conception.54 This was done in each state or territory either by passing a new Artificial Conception Act or by amending the existing status of children legislation.55 In all states and territories, the legislation regulating the parentage of children born following assisted conception) has extraterritorial application.56 A considerable degree of uniformity was achieved, following the agreement of the Standing Committee of Commonwealth and State AttorneysGeneral reached in July 1980 and reaffirmed in subsequent years. However the FLA does not completely mirror the state and territory legislation. Though there are some terminological variations across jurisdictions, each of the state and territory laws completely sever the relationship between the donor of gametes and the birth mother and her partner (if she has one). In situations where a woman gives birth to a child conceived through assisted conception, the state and territory legislation specifically provides

that the woman who carries and gives birth to the child is, in law, the child’s mother and the woman who produced the ovum is expressly stated not to be the mother.57 Likewise, the donor [page 399] of semen is categorically declared not to be a parent of child:58 see 7.37–7.58 for discussion on surrogacy. As explained below, at 7.21, while this is the situation pursuant to s 60H(1) of the FLA, whether the FLA achieves this outcome for single women is the subject of debate. Consideration of this issue commenced with the 1996 decision of B v J,59 a case relating to child support, in which Fogarty J expressed the view in obiter that, while the s 60H definition might be exhaustive in relation to child support liabilities: … [p]rima facie, s 60H is not exclusive, and so there would need to be a specific provision to exclude people who would otherwise be parents. Relevantly here, that means the donor of the genetic material.60

Following this decision, judicial debate ignited as to whether s 60H is an exhaustive definition of that concept (the exclusive approach) or whether it expands the meaning of the word ‘parent’ for the purposes of the FLA to include the donor of semen (the enlarging approach). The exclusive approach interprets the FLA provisions consistently with the state and territory provisions, whereas the enlarging approach may result in the donor of gametes being regarded as a parent of a child for Commonwealth purposes but not for state and territory purposes. Guest J, in Re Patrick (An application concerning contact),61 squarely held that a male sperm donor was not a parent for the purposes of the FLA. In his view,62 in the absence of any express federal provisions, the FLA ‘should be read in light of … state and territory presumptions, thereby leaving the sperm donor … outside the meaning of “parent”’.63 However, in Re Mark (An

application relating to parental responsibilities),64 Brown J suggested, but refrained from making a positive finding, that the donor of semen may very well be regarded as a parent for the purposes of an order made under the FLA. The discussion in this case arose out of a surrogacy arrangement (see 7.50), but the tenor of Brown J’s discussion and her subsequent critique of Guest J’s decision in Re Patrick indicate that her Honour’s views are not [page 400] limited to known donors in the context of surrogacy arrangements, but extend to all sperm donors known and unknown. Brown J placed particular emphasis on the Full Court’s decision in Tobin v Tobin.65 In that case, Finn, Kay and Chisholm JJ held that the term ‘parent’ in the FLA had its normal meaning (ie biological parent), but was extended by ss 60D (dealing with adoptive parents) and 60H. The Full Court in Tobin v Tobin concluded that the meaning of ‘parent’ in the context of child maintenance is the ‘biological mother or father of the child and not a person who stands in locus parentis’.66 Guest J had referred to Tobin in Re Patrick, but arguably correctly in this author’s opinion distinguished the fact scenario, as the child in Tobin had not been conceived through an artificial conception procedure and the decision was thus ‘of limited application’.67 So far as s 60H(1) is concerned, this debate has been resolved. In 2008, s 60H(1)(d) was amended so that it clearly states that the donor is not the parent of the child. 7.21 The decision of Wilson v Roberts (No 2)68 provides an example of the application of s 60H(1) as amended. The advent of same-sex parenting has resulted in the formation of diverse family forms. These non-traditional families may present as same-sex couples with children, or same-sex couples parenting with a single male or female. Alternatively, a female couple and a male couple

may choose to ‘poly-parent’ together. In Wilson v Roberts, a female couple elected to conceive a child using semen from a known donor who was also in a same-sex relationship. A dispute arose as to the intended level of involvement of the men in the child’s life. By virtue of the amended s 60H(1), the two women were held to be the parents of the child, while neither of the men was considered a parent. Parenting orders were made providing for the men to spend time with the child. 7.22 As has already been mentioned, in terms of the various state and territory legislation, the sperm donor is specifically stated to have no legal status in respect of the child. The state and territory courts have given effect to these provisions. In the case of AA v Registrar of Births, Deaths and Marriages and BB,69 the District Court of New South Wales ordered that the name of the donor be removed from a birth certificate and replaced with the name of the former partner of the birth/biological mother. The child was conceived through an assisted conception procedure, but at the time when the birth was registered it was not possible for the partner to be registered on the birth certificate. When the Status of Children Act 1996 (NSW) was amended recognising the non-birth mother as a parent (see 7.17), the mothers (the birth mother and her partner) successfully applied to court for an order [page 401] replacing the name of the biological father, the donor, with the name of the non-birth mother on the birth certificate.70 7.23 However, the Family Court has not emulated this approach. Unlike s 60H(1) (relating to married and de facto couples), which has been amended to clearly reflect that the donor is not a parent of a child, s 60H(2) (relating to single women) and (3) (relating to single men) were left open ended, allowing for the application of the enlarging approach. Recently, in Groth &

Banks71 — a case involving a single woman who conceived a child through assisted conception using a known donor — Cronin J approved the expanded interpretation of s 60H(3). An order was made confirming that the single mother and the donor were parents of the child. His Honour did not make an order declaring the donor a parent under s 69VA of the FLA, as he was satisfied that the donor was a parent and there was no person to displace him72 (see 7.11 for a discussion of s 69VA). His Honour rejected the argument that the state legislation was incorporated into the federal legislation.73 However, on the basis that there is direct inconsistency between the state legislation (which specifically prohibits the recognition of the donor of semen as a parent) and the federal FLA (which does not), s 109 of the Constitution must apply and the federal legislation must prevail. According to Cronin J, ‘… [i]f the applicant is a “parent” under the Commonwealth Act, a right inheres in him that the State legislation, by s 15, seeks to deprive. The Acts are, therefore, directly inconsistent.’74 This case has been justifiably criticised on the basis that there is nothing in the FLA which specifically states that the donor of semen should be recognised as a parent. In fact, the tenor of s 60H, together with reg 12C, suggests an intention for uniformity rather than inconsistency between state/territory and federal legislation. Furthermore, from a policy perspective, single women have entered into these arrangements in the expectation, based on state and territory legislation, that they would be the sole parents of these children.75 Worryingly, the enlarging approach may extend to known donors who have little contact with the child and even unknown donors: see the discussion of Re Mark (An application relating to parental responsibilities)76 at 7.21. This result creates unsatisfactory [page 402]

inconsistency as the donor will be regarded as a parent for Commonwealth purposes, but not for state/territory purposes. The practical ramifications of such a decision are extraordinary; for example, a donor/father may be liable for child support under federal law but be unable to have his name registered on the child’s birth certificate. Clearly this is not a situation that is in the best interests of child. 7.24 In 2012, the Commonwealth Attorney-General requested the Family Law Council to advise on a number of issues relating to the parentage of children, including issues surrounding assisted conception procedures and surrogacy arrangements. The Family Law Council released its report in December 2013.77 This Report noted that the harmonisation of parentage laws was considered desirable and that s 60H was being inconsistently applied. The Report expressed concern that single women were being treated differently to their partnered counterparts.78 The Council’s Recommendation 8 specifically provides ‘Council recommends that s 60H of the Family Law Act be re-drafted to be consistent in its approach to single and couple parents and to be consistent with state and territory laws in this area that make provision about the parental status of donors of genetic material.’ This recommendation is yet to be acted on.79

Assisted conception and child support 7.25 Section 5 of the Child Support Assessment Act 1989 (Cth) (CSA) defines ‘parent’, when used in relation to a child born via an assisted conception procedure, to mean ‘a person who is a parent of the child under section 60H of the Family Law Act 1975’. In B v J 80 Fogarty J interpreted this section to mean that s 60H provides an exhaustive definition for child support purposes.81 Since 1 July 2009, s 60H(1) has included female same-sex parents. Hence, in terms of s 60H(1), on separation the non-biological mother will be regarded as a ‘liable parent’ under the child support scheme and

obligated to pay child support. An exhaustive definition of s 60H(2) and (3) would result in no child support liability attaching to a donor of semen. 7.26 However, a recent decision of Harman J highlights the uncertainty that prevails in relation to the interpretation of s 60H. In Bateman & Kavan,82 Ms Bateman, a single woman using a known donor, Mr Kavan, conceived a child through an [page 403] assisted conception procedure. Ms Bateman applied for a child support assessment which was rejected on the basis that the donor was not considered a parent pursuant to s 60H of the FLA. She then sought a declaration from the Federal Circuit Court that the donor was a ‘liable parent’ for child support purposes. The matter was resolved and orders were made by consent whereby the donor, Mr Kavan, agreed that he should be assessed for child support as he was the parent of the child. During the course of providing reasons for making the consent orders, Harman J noted that the nine criteria contained in s 29(2) of the CSA (which provide bases on which the Child Support Registrar can accept parentage for the purposes of registering the case) are listed in the alternative. Amendments to the CSA in 2008 included as one of the alternatives that the person is a parent under s 60H of the FLA.83 Thus, according to Harman J, if s 60H is silent about the parental status of a child (as with s 60H(3)), the Registrar of Child Support is entitled to consider the other criteria set out in s 29(2) of the CSA.84 According to his Honour, the 2008 amendment means that s 60H(3) does not exhaustively determine whether a person is a parent of a child for child support purposes. Section 29(2)(b) of the CSA states that registration as a parent on the birth certificate is proof of parentage. In this case, Mr Kavan was registered as a parent and thus should be regarded as such for

child support purposes. Harman J thus accepted an enlarging approach to s 60H(3), saying specifically that s 60H ‘is not prescriptive or intended to be definitive of “parentage”’. 85 In such circumstances, the donor would be regarded as a parent and hence liable for child support. The enlarging approach has therefore gained support in the area of child support. In adopting this approach, Harman J has rejected Fogarty J’s approach in B v J that, in relation to child support, the definition of ‘parent’ in s 60H was exhaustive. The precedential value of the decision is limited, both because (as Harman J himself noted) the orders were made by consent and because of the level of the court. Nor did Harman J engage with the nature of s 29 of the CSA, despite noting the centrality of its interpretation to his Honour’s decision. For further discussion, see 11.65. We would suggest that B v J provides the better authority on this point. The approach of the Family Court concerning the liability of a donor for child support remains to be clarified. Finally, we note the decision of Kay J in ND v BM,86 where the child was conceived through donor insemination, but the manner of conception was not artificial or assisted.87 In that case, the child was conceived through vaginal intercourse with the express intention that the donor would not be regarded as a parent, but rather that the birth mother and her lesbian partner would be regarded as the child’s [page 404] parents. Kay J concluded that sexual intercourse cannot constitute ‘reproductive technology’. When a child is conceived through vaginal intercourse in the ‘usual and customary manner’, the biological parents are to be regarded as the parents of the child.88 This is the position even if it is contrary to the parties’ intentions.89

Regulation of artificial/assisted conception and related research procedures 7.27 The successful development of reproductive technology in Australia has, to a large extent, been made possible because of extensive research, often involving medical experimentation on human genetic material. Until relatively recently, medical research in this area has been largely unregulated. In more recent times, however, concerns have been raised about the ethics of some forms of experimentation, particularly experimentation on cells taken from human embryos (embryonic stem cells). This resulted in calls for legal regulation of the area, and, from some quarters, calls for the total prohibition of embryo experimentation.90 The reproduction of animals (most famously ‘Dolly’ the sheep in 1997) by cloning also generated considerable legal and ethical debate about research into reproductive technologies, and added to calls for regulation. The attempts by some scientists to try to clone humans have only intensified this debate. In addition, by virtue of the technique of cryopreservation, it is possible to ‘freeze’ human embryos and subsequently thaw them for use as required. The technological capacity to freeze human embryos has, however, raised further difficult legal and ethical issues. Questions have accordingly arisen in relation to the need for regulation in other areas, including storage and disposition of frozen embryos and other genetic material. Numerous reports have been published, many of which recommended the introduction of legislation to regulate reproductive technology and related procedures.

Status of frozen embryos 7.28

The specific issue of the status of frozen embryos has come

to the fore, particularly in the context of disputes arising between the biological parents as to the future use of the embryos. [page 405] The only reported case in Australia involving a dispute over frozen embryos is the New South Wales decision of Ganter v Whalland.91 The de facto couple here had stored embryos because of the possibility the woman, Ms Ganter, would become infertile after treatment for cancer. The couple then separated. The agreement with the provider of the service barred Ms Ganter from using the embryos without Mr Whalland’s consent, which he withheld due, he said, to not wanting any financial responsibility for any resultant child. Ms Ganter made an application under the Property (Relationships) Act 1984 (NSW), which included seeking an order, essentially, that the embryos be treated as property; that she be given control of them; and that a declaration be made that, due to the relevant provisions of the Status of Children Act 1996 (NSW), Mr Whalland would be irrebuttably presumed not to be the parent of any child born. The matter was one of strict statutory interpretation as to the construction of the relevant parentage presumptions. The particular problem arose from these facts: Mr Whalland had provided the sperm, he was the de facto husband of Ms Ganter at the time the embryos were created, but he would not be the de facto husband at the time of implantation. This case highlights the problems that arise where the genetic material being used is that of the husband or partner. If that were not the case, the husband or partner could only become the parent where they had consented to the procedure. Thus, withdrawing consent to the procedure taking place would be enough to avoid the legal presumption of parentage, as there is no biological tie. In such a case, the man would have little reason to object to the use of the embryo. Where the genetic material being used is in fact that of

the male partner, two issues arise. First, he will be the biological parent of the child, whether or not the law recognises it, and he may not wish to have a child. Second, as arose in Ganter v Whalland, if they are not excluded from legal parentage by the operation of a presumption, then they will be liable to support the child. Thus, in this case the central question was whether the presumption that relieves a sperm donor, who is not the husband or de facto spouse of the wife, of legal parentage speaks as at the time of creation of the embryo or the time of implantation. If the answer was the former, then the man in this case would not have the protection of the presumption precisely because he was, at that time, the woman’s de facto husband. In other words, the man would be the legal father. If the presumption speaks as at the time of implantation, and the man is no longer the de facto spouse or husband, then he falls neatly into the role of sperm donor, and legal fatherhood is excluded. Campbell J in Ganter v Whalland considered the relevant presumption provisions to be ambiguous and, after some considerable discussion of the various possible interpretations, found Mr Whalland would be irrebuttably presumed not [page 406] to be the father of any child in these particular circumstances. Thus, it was the situation at the time of implantation that mattered. There appears to be no report as to what happened on the matter of ‘ownership’ of these embryos; however, it may simply be that Mr Whalland withdrew his objection to their use after this decision. 7.29 The courts in Australia have addressed the question of the status of frozen embryos in another context: inheritance. In the case of In the Estate of the late K,92 Slicer J of the Tasmanian Supreme Court held that a child, the product of his father’s semen

and his mother’s ovum and implanted in the mother’s uterus after the death of his father is, on birth, entitled to a right of inheritance afforded by law. In reaching this conclusion, Slicer J held that as a matter of policy, an in-vitro child should be afforded the benefit of the same legal principles applicable to a child en ventre sa mère. If a child conceived naturally before the father’s death but born after the death of the father is entitled to rights of inheritance, the same principle should be extended to children conceived in vitro, even though at the time of the father’s death the embryo had not been implanted in the mother’s womb. While this decision does not sit comfortably with Ganter v Whalland, it is fair to say that where the law is considering complex issues that involve conception and embryos, context is everything and may play a crucial part in determining the outcome.93 At the time of the fifth edition of this book, we reported on debate about this issue in the context of uniform succession laws and intestacy in Australia. Since that time, a final report has been issued by the New South Wales Law Reform Commission,94 Recommendation 24 being that ‘[p]ersons conceived before the death of the intestate but born after should inherit as if they had been born in the intestate’s lifetime’. However, Recommendation 25 adds that the person born after his or her father’s death ‘must have been in the uterus of their mother before the death of the intestate in order to gain any entitlement on intestacy’. The simple reason for this choice is ease of administration of estates — after all, a frozen embryo might be implanted some considerable time after the death of a parent and estates need to be wound up in good time. It was also noted that proposed new provisions giving the entire estate to spouses or partners on intestacy would most likely protect the interests of any children born in this way. [page 407] While In the Estate of the Late K was not dealing with the issue of

consent, there are clearly considerable problems as to consent where a provider of genetic material has died before the use of that material. For example, the New South Wales legislation states that unless the gamete provider has consented to the use of the gametes prior to death, the gametes must not be used in an assisted conception procedure.95

Posthumous sperm 7.30 In 1998, the Supreme Court of Victoria faced yet another dilemma in the context of reproductive technology, this time regarding the use of posthumous sperm, which has given rise to some interesting cases coming before the courts. In AB v AttorneyGeneral,96 AB, a widow, was successful in obtaining orders providing that sperm be taken from her dead husband and stored in accordance with the Victorian legislation. She was restrained from using the sperm without a further court order. In 2005, AB went back to the Supreme Court and asked for a declaration that using the stored sperm to make her pregnant would not be unlawful.97 While the judge agreed that the intended procedure (intracytoplasmic sperm injection) would not contravene s 43(a) of the then-current Infertility Treatment Act 1995 (Vic), which prohibited ‘insemination’ with a dead man’s sperm, the provision of that Act requiring the man’s written consent (s 12(3)) had not been complied with, and therefore the declaration could not be granted.98 Hargrave J was clear that consent could not be implied simply because evidence was led that the deceased had wished to ‘have a family’ some day.99 In Jocelyn Edwards; Re the Estate of the Late Mark Edwards,100 the New South Wales Supreme Court was confronted with a similar scenario. The Mr and Mrs Edwards had been about to commence IVF when Mr Edwards was killed in an accident. Sperm was extracted pursuant to a court order shortly after his death. The court granted Mrs Edwards’ application for possession of her husband’s sperm on the basis that the sperm was property. In

reaching this conclusion, the court relied on the Queensland decision of Bazley v Wesley Monash IVF Pty Ltd,101 where the [page 408] husband had arranged for sperm to be collected and stored by an IVF provider. He died before giving any direction as to its use. The applicant wife requested that the facility continue to store the sperm and the facility responded that, in the absence of an order from the Supreme Court of Queensland, it would destroy the sperm. The court concluded that the sperm was property owned by the deceased and therefore by his personal representative, his wife. It ordered the facility to continue to hold the sperm on essentially the same terms as agreed between the facility and the deceased.102 In those states that have passed legislation, provisions exist that deal with the use of posthumous sperm.103 The question of posthumous use of sperm is also covered in the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research (Guidelines 6.15 and 6.16).104 These guidelines reiterate the need for prior consent to have been obtained from the deceased man. Where a couple were having fertility treatment prior to the death, the matter of consent may be easier to establish. However, in many cases a couple may intend to have a child one day but the man dies unexpectedly, thus making it difficult to establish the necessary consent at the time of death. When the Victorian Law Reform Commission considered this matter, it recommended that consent should be express, and not implied.105 Victoria has legislated in this area and has elected not to adopt a more lenient approach. Under s 46 of the Assisted Reproductive Treatment Act 2008 (Vic), an assisted conception procedure provider may only posthumously use gametes where the deceased has given written consent and where the Patient Review Panel

gives its approval. Under s 47, the Panel must consider the potential impact on the future child and any research on outcomes for such children.

Legislative developments 7.31 The Commonwealth does not have the express power to legislate comprehensively on assisted conception procedures and research. Thus, regulating artificial conception procedures is largely a matter for the states and territories. Victoria was the first Australian jurisdiction to introduce legislation establishing a [page 409] comprehensive scheme for the regulation of the practices of artificial conception.106 That legislation was replaced first with the Infertility Treatment Act 1995 and then the Assisted Reproductive Treatment Act 2008. The other jurisdictions that have so far enacted legislation dealing with the regulation of human reproductive technology are New South Wales,107 South Australia108 and Western Australia.109 In all states and territories, licensing or registration requirements and other approval procedures have been put in place with regard to the carrying out of both artificial conception procedures and research. Some procedures and forms of research, including human cloning, are expressly prohibited under legislation or under the codes of ethical practice. All of the states and the Australian Capital Territory have also enacted some prohibitions on embryo research.110 Increasingly, there have been calls for other states and the territories to introduce comprehensive legislation with respect to assisted conception procedures and for greater uniformity to be achieved between jurisdictions. Of particular relevance, for those jurisdictions that have not enacted specific legislation, is the system of self-regulation and accreditation comprising the

Reproductive Technology Accreditation Committee of the Fertility Society of Australia and its Code of Practice for units using IVF and related reproductive technologies. Also of relevance in this regard are the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research,111 which apply in all jurisdictions, subject only to inconsistent state/ territory legislation. These two documents are of particular significance because funding for a service provider can be tied to accreditation and compliance. 7.32 The Commonwealth have the power to legislate in respect of human cloning and embryo research. The question of regulating research in this area gained such public attention that the Federal Government entered the legislative arena, passing what are now known as the Prohibition of Human Cloning for Reproduction Act 2002 (Cth) and the Research Involving Human Embryos Act 2002 (Cth).112 [page 410] In April 2002, the Council of Australian Governments (COAG) agreed to introduce consistent legislation on human cloning and the research use of human embryos, ideally by the end of 2003. The aim of this legislative scheme is to create a regulatory framework for prohibiting unacceptable research practices and to regulate the research use of excess embryos generated by assisted conception. In essence, it prohibits reproductive cloning, as well as trading in human eggs, sperm or embryos, but permits approved research programs to conduct research on small numbers of excess IVF embryos or therapeutic clones.113 All states and territories, except for the Northern Territory, passed complementary legislation giving effect to the COAG agreement.114

Access to assisted conception procedures 7.33 Another area of particular concern and interest is the question of access to assisted conception procedures: should they be restricted to a particular model of family, for example, married couples? In jurisdictions that have introduced legislation regulating the area of assisted conception, varying restrictions were initially placed on access to these procedures that effectively denied access to de facto and same-sex couples, as well as single lesbian women.115 Over the years, a number of actions have been brought before the courts and other tribunals alleging discrimination by infertility clinics that have denied access on these grounds. In the case of Pearce v South Australian Health Commission,116 a challenge to the provisions of the then-current Reproductive Technology Act 1988 (SA) restricting access to assisted conception procedures to married or de facto couples was upheld [page 411] by the South Australian Supreme Court on the ground that these provisions were inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) which prohibits discrimination on the grounds of a person’s marital status. The offending provisions were accordingly held to be invalid to the extent of the inconsistency by virtue of s 109 of the Constitution. Similarly, an amendment to the Victorian legislation in 1997, extending access to fertility treatment to de facto couples, was prompted by a successful claim made to the Human Rights and Equal Opportunity Commission on the same basis, by three heterosexual, but unmarried, couples.117 In 1999, a woman who was refused donor insemination in Victoria because she was single

also successfully complained to the Human Rights and Equal Opportunity Commission.118 It seemed the matter was then laid to rest with the Federal Court decision in McBain v Victoria,119 which confirmed that a woman cannot be denied treatment because of her marital status. The decision was appealed, unsuccessfully, to the High Court.120 However, the Sex Discrimination Amendment Bill (No 1) 2000 (Cth) was then introduced into the Federal Parliament, with the aim of amending the Sex Discrimination Act 1984 (Cth) so as to permit discrimination on the basis of marital status in this situation. After a very negative report from the Senate Legal and Constitutional Legislation Committee,121 which highlighted how such an enactment would breach Australia’s obligations under international treaties, the Bill was not enacted. The regulation of reproductive services falls within the parameters of the states and territories. To date, four states have enacted legislation regulating access to assisted conception procedures: see 7.31. Amendments to the legislation in South Australia provide that, subject to infertility requirements, assisted conception is available to married couples, to heterosexual couples who are living in a de facto relationship and to single women. Although not explicitly mentioned, by extension assisted conception procedures may be provided to lesbian couples who fit the infertility criteria.122 In Western Australia, sweeping legislative amendments to avoid discrimination against homosexual people have resulted in the reproductive technology legislation in that jurisdiction granting access to IVF to all women who ‘are unable to conceive a child due to medical reasons’. However, if a woman wishes to be treated as part of a couple, then that couple [page 412] must

be

heterosexual.123

The

New

South

Wales

Assisted

Reproductive Technology Act 2007 and accompanying regulations do not attempt to limit access to assisted conception, and all women, regardless of marital status, may access these procedures. Traditionally, in the jurisdictions where access is regulated, applicants for assisted conception procedures (or in the case of Western Australia, IVF) have had to be either unable to have a child or at risk of passing on an inherited disease or condition. In Victoria, the legislation required that the woman be ‘unlikely to become pregnant’ without the treatment. A two-tiered system developed in Victoria, where clinical infertility was required for single women, but partnered women had only to meet the broader test of inability to conceive. After a long review of the legislation, the Victorian Law Reform Commission recommended that Victorian law be amended to permit equal access to single and lesbian women.124 The government accepted this recommendation and passed the Assisted Reproductive Treatment Act 2008 (Vic),125 which allows all women access to reproductive treatment irrespective of marital status. South Australia has amended its legislation to allow all women to access assisted conception procedures provided the woman ‘is or appears to be infertile’.126 As a result, single women or lesbian couples who do not meet the medically infertile criteria but who wish to have children through, for example, donor insemination will still not be able to access assisted conception procedures. South Australia thus remains the only state with access restrictions for single and lesbian women. 7.34 Apart from the issue of marital status, there are a number of other difficult legal and ethical issues that have arisen with regard to access to assisted reproductive technology, including the question of availability of IVF for older women. In the wake of reports from overseas of women in their 50s, and even their early 60s, giving birth to children following successful assisted conception procedures, it is inevitable that attention will need to be given to the issue of equity of access in Australia, and to

whether any age restrictions are appropriate. As the legislation stands in Victoria and South Australia, there are no specific restrictions with regard to the age of the mother/parents. However, South Australia did review this question after a 53-yearold woman in that state gave birth to triplets. No age limit was set for fertility treatment, but guidelines were produced governing the assessment of risk factors for individual cases.127 The Howard Federal Government [page 413] flirted with the idea of restricting Medicare funding for older women, but decided against this. In Western Australia, while there is no prescribed age limit, s 23(d) of the Human Reproductive Technology Act 1991 stipulates that a person’s infertility must not be due to age, which would have the effect of excluding the use of IVF treatment for women who have reached menopause. 7.35 Each of the state Acts regulating access to assisted conception procedures emphasises that the welfare of any child born as a result of a procedure is an important factor.128 In its detailed consideration of eligibility criteria for access to reproductive technology, the Victorian Law Reform Commission has explored the idea that parenting criteria might in some way be factored into the eligibility criteria, over and above the general requirement to consider the child’s best interests.129 Consideration was given to whether the principles set out in the FLA in relation to parenting might be usefully imported into the assessment process. Of course, the FLA provisions are drawn in light of a set of existing parents and an existing child. The legislative provisions regulating access to assisted conception procedures make the provision of services discretionary to an extent, and so this opens up the possibility of candidates for assisted conception being

subjected to screening of a kind that would never be tolerated for couples conceiving children naturally.130 As part of its deliberation process, the Commission made a broad range of interim recommendations, which would certainly have taken the question of parental fitness further than existing legislation. Ultimately, in its Final Report, the Commission rejected the idea that there should be any general ‘fitness to parent’ test. Instead, it opted for recommending a model under which, if the doctor delivering the service believes a future child might be at risk of abuse or neglect, they must refer the matter elsewhere to be decided, thus hoping to avoid discrimination in the delivery of fertility services. The Commission went one step further, however, in recommending that in certain instances a parent would be presumed to be an unacceptable risk to a future child, and so delivery should be withheld unless an independent review panel, after careful consideration, decided otherwise. This would be, for example, where the prospective parents or either of them had been convicted of sexual, or certain [page 414] violent, offences, or had a child protection order made removing a child from their care.131 The legislation that was enacted as a result of this Report implements (with some variations) the substance of these recommendations and creates the Patient Review Panel to decide when treatment should be withheld.132 7.36 The recent decision of TRV v Department of Health and Human Services133 represents an example of the operation of the Victorian legislation that provides for the screening of people seeking access to assisted conception. A Victorian couple, TRV and TPW, wished to access assisted conception. In accordance with the legislation, child protection order checks were undertaken in

relation to the couple. These checks showed that, at various times, orders had been made removing four children from TRV’s custody or guardianship. In circumstances where a child protection order has been made, the Victorian legislation provides that there is ‘a presumption against treatment’ which applies to any person seeking a treatment procedure.134 As a result, treatment could not be provided to TRV.135 TRV applied to the Panel for review, and after considering evidence the panel decided that ‘[a]t this period of time there is a barrier to treatment and treatment may not proceed.’136 TRV and TPW applied to VCAT to review this decision. The Tribunal upheld the decision of the Review Panel on the basis that there were ‘significant and continuing risks to the welfare and interests of a child … and at this stage the Tribunal cannot be satisfied that it is in the best interests of a child to be born for such treatment procedure to be made available’.137

Surrogacy 7.37 Surrogacy involves an arrangement whereby a woman (the surrogate mother) agrees with a couple or a single person (commonly referred to as a ‘commissioning’ couple/person or ‘the intended parent(s)’) to carry a child and then to surrender the child to the couple/person on the child’s birth. There are a range of circumstances in which a surrogacy arrangement may arise. A distinction is sometimes made between ‘partial’ or ‘genetic’ (also known as traditional) surrogacy, and ‘total’ or ‘gestational’ surrogacy. ‘Partial’ or ‘genetic’ surrogacy involves the use of the surrogate’s own egg, fertilised either by sperm from the commissioning father or from a donor, whereas ‘total’ or ‘gestational’ surrogacy [page 415]

involves the implantation of an embryo into the surrogate mother, so the surrogate mother has no genetic connection with the child. Gestational surrogacy may involve the use of gametes from one or even both of the commissioning parents. 7.38 The ethics of surrogacy, particularly where it involves commercial as distinct from ‘altruistic’ arrangements, have been widely debated, with a range of arguments advanced for and against permitting such arrangements. Arguments in support of surrogacy rest largely on an individual’s right of autonomy or selfdetermination — that parties should be free to enter into such arrangements. The arguments of proponents are then bolstered by claims that surrogacy is not harmful in itself, nor is it contrary to the public interest. The arguments that have been raised against surrogacy include that it is against children’s best interests, against the interests of the surrogate/birth mother and women generally, and against the public interest. Prominent among the concerns of those opposed to surrogacy are concerns about the exploitation of surrogate mothers and problems arising where, contrary to the agreement, the surrogate does not wish to relinquish the child. The commercial aspects of surrogacy arrangements and the potential for the commodification of children, particularly where third parties with a profit motive are involved, have been especially deplored.

The status of surrogacy arrangements 7.39 A major complicating factor in relation to surrogacy arrangements that entail the use of assisted conception procedures (either IVF or assisted insemination) is that, failing additional legislative intervention relating specifically to surrogacy, the existing legal principles in relation to parentage of children apply, irrespective of what the commissioning parents’ and surrogate’s own views or expectations are in relation to the parentage of the

child. As we have seen, in the case of married couples or couples living in a de facto relationship, at a state and territory level an irrebuttable presumption exists that the woman who gives birth to a child is the mother of the child, and her husband (or de facto partner) is the father, provided he gave his consent to her undergoing the procedure. The FLA contains similar deeming provisions. At a state and territory level, this position is reinforced by further irrebuttable presumptions that the donors of sperm and of ova are respectively not the father or mother of the child. The situation under the FLA is less clear: see 7.17–7.24. These presumptions clearly have the effect of defeating the intentions of the parties to a surrogacy arrangement where they have deliberately sought to create a biological connection with the child by using the genetic material of one or both of the commissioning parents. In these circumstances, failing alternative legislative intervention, adoption of the child by the commissioning parents would be the only means by which legal parentage of the child could be transferred to [page 416] the commissioning parents.138 Decisions show that in the absence of legislative intervention dealing specifically with surrogacy arrangements, when granting adoption orders, there is a tendency on the part of the courts to place the child’s best interests ahead of concerns about the legality of surrogacy arrangements.139 The fact that adoption is required to bestow legal parentage was confirmed in Re Births, Deaths and Marriages Registration Act 1997.140 The two biological parents of a child, delivered by another woman (the commissioning father’s sister-in-law), sought a declaration that they were the child’s parents. They wished to have the child’s birth certificate altered to show them as the parents. Crispin J held that the provisions of the Artificial Conception Act 1985 (ACT), making the birth mother and her

husband the parents, were conclusive consideration of the child’s best interests.

and

allowed

no

7.40 It is not difficult to envisage circumstances in which the status of a commercial surrogacy arrangement may be raised before a court, the most likely scenario being that the surrogate mother may change her mind and refuse to relinquish the baby to the commissioning couple. It is also quite possible that the commissioning couple may refuse to pay the agreed fee or to accept the child if there has been a change in their own circumstances, or the child is in some way disabled. Even in the case of altruistic surrogacy arrangements, the arrangements do not always work out and people change their minds with, at times, tragic consequences. In Re Evelyn,141 a child, ‘Evelyn’, was born as a result of an altruistic surrogacy agreement between two couples, Mr and Mrs Q from Queensland and Mr and Mrs S from South Australia. The two couples had been close friends for many years. Mrs Q was infertile after having a total hysterectomy following ovarian cancer. In 1995 Mrs S offered to act as a surrogate mother for Mr and Mrs Q and it was agreed that the child would be relinquished to Mr and Mrs Q following its birth. Mrs S was inseminated with Mr Q’s sperm and she became pregnant. Following the birth, Evelyn lived with the Qs but Mrs S found it difficult to cope with the relinquishment and a dispute developed between the two couples. As a result, Mrs S retrieved the child and returned with her to South Australia. Mr and Mrs Q issued proceedings seeking that, in accordance with the surrogacy agreement, Evelyn be allowed to live with them. At a contested interim hearing, it was decided that Evelyn would live with the Qs and that Mr and Mrs S would have contact with her. At the time of the final hearing, Evelyn was one year old. The trial judge, Jordan J, decided that contrary to the surrogacy agreement, Evelyn should be [page 417]

placed with her biological mother Mrs S and her husband, rather than with the biological father Mr Q and his wife. Mr and Mrs S should have responsibility for her day-to-day care, welfare and development and Mr and Mrs Q should have specified contact with her. Both couples would share responsibility for her longterm care, welfare and development. Jordan J reached this decision based on the paramountcy principle. His Honour emphasised the long-term rather than shorter-term implications for the child, the importance of the biological mother helping the child cope with her unique situation and reducing the risk of a sense of rejection, and the fact that the biological mother had other children who were the child’s biological siblings. Mr and Mrs Q appealed this decision and Evelyn remained living with them pending the outcome of the appeal. The Full Court (Nicholson CJ, Ellis and Lindenmayer JJ) held that the decision was within the trial judge’s discretion.142

Legislative developments 7.41 In Australia, the Commonwealth lacks power to legislate with respect to regulation of surrogacy arrangements and therefore the states and territories are obliged to legislate in this area.143 Surrogacy has been the subject of extensive legislation in Australia. Two waves of legislative reform relating to surrogacy arrangements have been identified. The first wave occurred during the late 1980s and early 1990s, when there were over eight state and three federal inquiries that made recommendations about surrogacy, and a second wave of reforms occurred in the mid to late 2000s.144 Following these reforms, the inconsistency of state and territory laws remained in the spotlight, not least because it was reported late in 2006 that an Australian politician, Senator Conroy and his wife, had entered into a surrogacy arrangement, but had to have the whole procedure (which involved IVF) carried out in New South Wales, because in their own state of Victoria even altruistic surrogacy was prohibited at that time. Shortly after this disclosure,

the Federal Government announced a commitment to securing national consistency in this area and in March 2008 the states and territories agreed to ‘develop a unified framework under which altruistic surrogacy arrangements would be legal but agreements between couples and surrogate mothers would be unenforceable. Commercial surrogacy will remain illegal’.145 [page 418] 7.42 In 2009, the Standing Committee of Attorneys-General (SCAG) issued a proposal for a ‘national model to harmonise regulation of surrogacy’.146 In the meantime, most states and territories undertook a review of their surrogacy laws and many adopted new provisions.147 All Australian jurisdictions other than the Northern Territory have now enacted surrogacy legislation, and prohibited and criminalised commercial surrogacy. Although some jurisdictions do not expressly prohibit commercial surrogacy, they use terminology that has a similar effect. For example, in Victoria s 44 of the Assisted Reproductive Treatment Act 2008 states: ‘A surrogate mother must not receive any material benefit or advantage as a result of a surrogacy arrangement.’ In three jurisdictions (the Australian Capital Territory, New South Wales and Queensland), extraterritorial prohibitions are placed on commercial surrogacy that make entering into an overseas commercial surrogacy agreement an offence.148 7.43 So far as altruistic surrogacy arrangements are concerned, all Australian jurisdictions — with the exception of the Northern Territory where surrogacy is not regulated149 — allow altruistic surrogacy. The existing legislation in the states and territories is the Parentage Act 2004 (ACT); the Surrogacy Act 2010 (NSW); the Surrogacy Act 2010 (Qld); the Family Relationships Act 1975 (SA), the Births Deaths and Marriages Registration Act 1996 (SA) and the Assisted Reproductive Treatment Act 1988 (SA), all of which were

amended by the Statutes Amendment (Surrogacy) Act 2009 (SA); the Surrogacy Act 2012 (Tas); the Assisted Reproductive Treatment Act 2008 (Vic); and the Surrogacy Act 2008 (WA). [page 419] There are significant differences between all these legislative regimes.150 For example, in New South Wales, Queensland, Victoria and Western Australia, the birth mother must be at least 25 years of age;151 in the Australian Capital Territory, South Australia and Western Australia, at least one of the commissioning parents must be a genetic parent;152 in Western Australia, only heterosexual married (or de facto) couples, medically infertile single women and women who may give birth to a child with a genetic abnormality/disease may apply for a parentage order arising from a surrogacy agreement;153 and in South Australia, only married couples or those in a heterosexual de facto relationship for more than three years may apply for a parentage order.154 The criteria for making orders transferring parentage to the commissioning parents also differ between jurisdictions. For example, in the Australian Capital Territory, the relevant court must make the parentage order if satisfied that the order would be in the child’s best interests and the birth parents freely agree.155 In Victoria and Western Australia, the power to make the order is discretionary,156 though in the latter jurisdiction it is presumed to be in the best interests of the child that such an order be made and the child’s best interests are the paramount consideration in the making of the order.157 The best interests of the child is also a mandatory precondition to the exercise of a discretionary power to make an order in Queensland and New South Wales;158 and the ‘welfare of the child’ is the paramount consideration in South Australia.159 From these few examples it can be seen that the surrogacy legislation is far from harmonious or uniform, and in fact a complex web of legislation has been created.160 Parties

[page 420] looking to enter into such arrangements may engage in ‘regime shopping’.161 However, it has been noted that where legislation exists: [t]he common provision amongst all of the States and Territories in Australia is that whilst commercial surrogacy arrangements within Australia are prohibited, altruistic surrogacy is not prohibited. However, agreements to enter into altruistic surrogacy arrangements are void and therefore altruistic surrogacy arrangements cannot be enforced.162

Keyes also points out that such agreements are not binding per se, as the courts must ensure compliance with a number of requirements including that the birth mother has consented to the application for a parentage order.163 Consequently, a birth mother cannot be forced to surrender a child. 7.44 Parentage orders may be made under state legislation by the relevant state courts, and by the Family Court of Western Australia in that state.164 Pursuant to such orders, parentage will be transferred from the surrogate mother and her married or de facto partner (if she has one) to the ‘commissioning parent/s’. A number of such applications seeking to transfer parentage have now come before the courts. In September 2010, the Queensland District Court made orders pursuant to the Surrogacy Act 2010 (Qld) transferring parentage from the surrogate couple to the commissioning parents: BLH & MH v SJW & MW.165 In New South Wales in 2012, in Application of MM & KF re FM,166 a samesex male couple had entered into an altruistic surrogacy arrangement with a single woman. The commissioning couple successfully applied to the New South Wales Supreme Court for orders transferring parentage from the surrogate to the couple. When [page 421]

making the orders transferring parentage to the couple, Brereton J commented that ‘this is the first application under the Act of which I am aware in which the intended parents are a same sex couple’.167 Given that commercial surrogacy arrangements are legislatively prohibited and regarded as a criminal offence throughout Australia (except in the Northern Territory), parentage can only be transferred where altruistic surrogacy arrangements have been entered into. However, even in the case of an altruistic surrogacy arrangement, the surrogate mother is entitled to be reimbursed for prescribed costs associated with the pregnancy.168 This is the case even though she cannot be forced to relinquish the child, except in Queensland, where the surrogate mother will not be entitled to be reimbursed costs associated with the pregnancy if she does not relinquish the child or does not consent to an application for a parentage order: Surrogacy Act 2010 (Qld) s 15(2)(b). The exact costs that the mother is entitled to receive once again varies between jurisdictions. If the mother receives a fee or reward that goes beyond the prescribed costs she is entitled to receive, a criminal offence may have been committed.

Surrogacy arrangements and the FLA 7.45 In 2008 the Commonwealth also entered the legislative arena with the introduction of s 60HB of the FLA.169 Section 60HB provides that where a court has made an order creating the parent–child relationship under ‘prescribed’ state provisions, it is to be effective for the purposes of the FLA. In addition, reg 12CAA of the Family Law Regulations 1984 (Cth) sets out the prescribed laws and contains the relevant existing state and territory legislation relating to the regulation of surrogacy arrangements. The facility to have a transfer of parentage from the surrogate to the intended or commissioning parent/s recognised under the FLA is, it would seem, only applicable to altruistic surrogacy

arrangements where the state or territory legislation is prescribed under the Family Law Regulations. 7.46 In Re Michael: Surrogacy Arrangements,170 a child, Michael, was born as a result of an altruistic surrogacy arrangement. The intended father, who was also the biological father, and the surrogate mother were named as Michael’s parents on his birth certificate. Although this was an altruistic surrogacy arrangement, at the time when the application was made, surrogacy legislation had not been passed in New South Wales and thus s 60HB was ineffective in that state. [page 422] The commissioning parents applied to the Family Court under s 60G (which relates to adoption by parents and step-parents) for leave to commence proceedings to adopt Michael. Watts J rejected the application on the basis that neither of the commissioning parents were Michael’s legal parents. In reaching this conclusion, Watts J discussed the operation of s 60H and concluded that the effect of this section, when read in conjunction with the relevant state legislation, was that the surrogate mother and her de facto partner were the parents of the child: see 7.17–7.18. Moreover, the provisions contained in s 60H with regard to the parentage of children born as a result of assisted conception prevailed over s 69R of the FLA, which contains the rebuttable presumption of parentage arising out of being named on the birth certificate. In his judgment, Watts J also commented on the ‘enlarging’ approach to s 60H that Brown J had proposed in Re Mark (An application relating to parental responsibility),171 and held that ‘the debate … has been legislatively decided’ and that ss 60H(1) and 60HB provide an exhaustive definition of parentage in the case of surrogacy.172 Nevertheless, in other cases involving surrogacy

arrangements, the biological father has been regarded as the parent of the child:173 see the discussion at 7.20–7.24. 7.47 Given the difficulties associated with concluding an altruistic surrogacy arrangement within Australia, increasingly couples are seeking to become parents through overseas commercial surrogacy arrangements. This is becoming an attractive option particularly for male same-sex couples, given their very limited opportunities to become parents. The Australian Capital Territory, Queensland and New South Wales have passed extraterritorial criminal provisions in relation to commercial surrogacy arrangements: see 7.42. In addition, while the legislation differs considerably between all jurisdictions, implied extraterritorial regulation, such as geographical requirements, exists to indirectly restrict access to surrogacy. The recent escalation in the demand for commercial surrogacy arrangements has resulted in increased pressure to amend the surrogacy legislation throughout Australia, so that commercial surrogacy arrangements are recognised and regulated. 7.48 Although it is impossible to state with any precision the number of Australians entering into overseas commercial surrogacy arrangements, the increased frequency with which they are doing so is well documented.174 An online survey [page 423] conducted during July 2013 indicated that of the 259 participants who completed the survey, 112 (43 per cent) had undertaken at least one surrogacy attempt overseas.175 The most recent data indicates that on a per capita basis, Australians seem to be the highest users of overseas commercial surrogacy arrangements. These data also indicate a steady increase in the number of Australians entering these arrangements:176

Source country Australia

2012

2013

2014

123

127

141

By contrast, there is a trickle of people using, or predicted to use, altruistic surrogacy arrangements, ranging from 8 in 2008 to 19 in 2012.177 In its submission to the Family Law Council Surrogacy Inquiry on International Surrogacy Arrangements, the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection) acknowledged that the number of citizenship applications for surrogacy births abroad had increased since 2008. It estimated that ‘there are now well over 100 cases per year.’178 Keyes has noted that ‘[t]he prohibition of commercial surrogacy in Australia creates the conditions for international regime shopping’.179 7.49 It seems as if s 60HB will not operate in the case of commercial surrogacy arrangements concluded in Australia or overseas, or, perhaps depending on the jurisdiction, in respect of altruistic surrogacy arrangements concluded overseas.180 [page 424] An available option is for the commissioning parents to make an application to the family courts for parenting orders. Such an application will be made pursuant to ss 64C and 65C(c) of the FLA and will include orders for parental responsibility. Increasingly, in these situations, the Family Court is making orders for parental responsibility, covering all aspects relating to the care, welfare and development of the child.181 However in some cases the Family Court is making orders pursuant to s 69VA of the FLA declaring the male partner whose sperm was used to be a parent of the child:182

Conflicting decisions in the Family Court

7.50 The earliest reported decision concerning a commercial surrogacy arrangement, Re Mark (An application relating to parental responsibilities),183 predated s 60HB: see 7.21. In this case, a samesex male couple from Victoria had entered into a surrogacy arrangement with a woman in California. The ovum was supplied by an anonymous donor and the sperm was provided by one of the men. The birth mother had been served with notice of the proceedings for parenting orders in the Family Court, but elected not to participate and the orders were obtained with the consent of all the parties. Interestingly, according to Brown J, ‘[t]he fact that such an agreement would be illegal in Victoria … is not a relevant consideration’.184 7.51 As has already been noted (at 7.48), there has been an escalation in the number of couples seeking to utilise overseas surrogacy arrangements, with a corresponding increase in the number of applications for parenting orders coming before the family courts. In Dennis & Pradchaphet185 and Dudley v Chedi,186 a heterosexual couple entered into a commercial surrogacy arrangement in Thailand. As a result, three children were conceived using Mr Dudley’s sperm and the eggs from a Thai woman. The fertilised zygotes were implanted in two women, resulting in the delivery of a set of twins by one woman and a third child by another. As a result, two separate applications were made to the Family Court with [page 425] the ensuing judgments reflecting vastly different approaches to the issue of the parentage of children born through surrogacy arrangements. Stevenson J in Dennis & Pradchaphet, who heard the application regarding the single child, found that Mr Dudley (referred to in the judgment as Mr Dennis) was a parent for the purposes of the FLA and made parenting orders that the child live

with him and his partner and that they have joint parental responsibility. In Dudley v Chedi, Watts J, who heard the application pertaining to the twins, adopted a very different approach to overseas commercial surrogacy arrangements. Although he was not asked to make a determination as to parentage, he stated in obiter that as the children were conceived through an assisted conception procedure, and as the surrogate mother was not married or in a relationship with another man at the time of conception, s 60H of the FLA did not apply. Moreover, as the parties had entered a commercial surrogacy arrangement that was illegal under the then-current Queensland legislation, s 60HB of the FLA was not enlivened (at this time, all extraterritorial surrogacy arrangements, both altruistic and commercial, were regarded as criminal offences in Queensland). Hence, Mr Dudley could not be regarded as a parent of the twins for the purposes of the FLA. However, Watts J went further and on the basis of the illegality of the arrangement, referred the papers to the Director of Public Prosecutions for consideration of the prosecution of the applicants.187 On the basis of the best interests of the child, Watts J did however make orders for parental responsibility. Both Watts J and Stephenson J noted the additional complication, that Thai law required children to obtain the ‘age of reason’ before the surrogate mother could relinquish her parental rights. As a result, the Australian authorities denied an application for citizenship based on descent. 7.52 The debate surrounding the parameters of the FLA and the scope of the provisions relating to parentage further intensified, and culminated in the decision of Ryan J in Ellison v Karnchanit.188 In this case, Ryan J found that the commissioning father was the biological father of a pair of twins and on that basis made an order pursuant to s 69VA of the FLA (see 7.11) declaring the commissioning father a parent of the child for the purposes of Commonwealth law.189 In reaching this conclusion,

[page 426] while her Honour found that ss 60H and 60HB do not apply to children born as a result of an overseas commercial surrogacy arrangement, she accepted the enlarging approach to s 60H(3) (see 7.23) and found that the legislation does not have the effect of excluding the biological father as a parent.190 Her Honour also provided detailed ‘best practice’ guidelines for making parenting orders in cases involving an overseas commercial arrangement, however these guidelines have not been followed.191 7.53 In an interesting development, Ryan J in Mason & Mason192 recanted from her position in Ellison and revisited her interpretation of the relevant sections.193 Her Honour concluded that where a child is conceived through assisted conception, an order cannot be made pursuant to s 69VA declaring the biological father the legal parent of the child. Thus the parentage of children must be determined by reference to state legislation. Her Honour noted: … it is my preliminary view that for the purposes of the Act, the 2008 amendments evince an intention by Parliament that the parentage of children born as a result of artificial conception procedures or under surrogacy arrangements will be determined by reference to those provisions and not the general parentage provisions. This interpretation achieves, on a state by state (and territory) basis, a uniform system for the determination of parentage.194

Thus, according to Ryan J, where parties have entered into an overseas commercial surrogacy arrangement, an order of the state courts transferring parentage to the commissioning couple is a precondition to making a declaration of parentage under the FLA.195 Clearly in the commercial surrogacy context, no such order can [page 427]

be made as commercial surrogacy arrangements are expressly or impliedly illegal throughout Australia. Hence, in Mason parenting orders were made in favour of the commissioning parents, but a declaration of parentage could not be made. 7.54 However, Johns J has since taken up the cudgels and made orders pursuant s 69VA declaring the biological father the legal parent of a child born through an overseas commercial surrogacy. In Green-Wilson & Bishop, her Honour sitting in the Melbourne Registry of the Family Court, made orders declaring Mr GreenWilson the father of a child born in India.196 In recognising the biological progenitor as the father, her Honour accepted Cronin J’s expanded interpretation of s 60H(3) in Groth & Banks (discussed above at 7.23). She also distinguished the legal matrix of this decision from that in Mason — unlike the New South Wales legislation (that applied in Mason), which specifically ‘prohibits’ commercial surrogacy,197 the Victorian legislation states that ‘a surrogate mother must not receive any material benefit or advantage as a result of a surrogacy arrangement’.198 On this basis, her Honour reasoned that the Victorian legislation failed to prohibit commercial surrogacy. Johns J also made reference to the New South Wales legislation ‘covering the field’ in respect of the parentage of children born via surrogacy arrangements,199 whereas the Victorian legislation ‘is silent’.200 According to Johns J, a lacuna in the law is thus created, allowing for an order to be made declaring the biological father the legal parent of the child. Although not expressly articulated, part of the reason Johns J may have held that the New South Wales legislation ‘covers the field’ is the extraterritorial reach of the New South Wales law that is clearly absent from the Victorian legislation. Since then, Thornton J, also sitting in the Melbourne Registry of the Family Court, noted in Cowley & Yauvaves201 that the law relating to commercial surrogacy was ‘unclear’ and ‘a matter of controversy within the community’. As there was no application for a declaration of parentage before the court in the case in question,

her Honour avoided engaging in the debate and made parenting orders in favour of the commissioning parents. Most recently, Berman J in Bernieres & Dhopal202 declined to follow Johns J. He refused to make an order declaring the biological father a parent of the child born via a gestational commercial surrogacy [page 428] arrangement in India.203 His Honour was not satisfied ‘that the definition of a parent should be extrapolated because of a legislative vacuum’.204 7.55 These cases highlight both the unclear status of the law as to legal parentage, and the invidious position judges are put in when faced with applications for parenting orders where the applicants have entered into an illegal surrogacy arrangement. Of course, the child’s best interests are the paramount consideration in making the parenting order, and the child cannot be punished for the ‘sins’ of the commissioning parents — thus the parenting orders sought are invariably made. Nonetheless, it is a very unsatisfactory position. In December 2013 the Attorney-General charged the Family Law Council of Australia (FLC) to consider and advise on a number of areas in the FLA dealing with the parentage of children. After a painstakingly detailed and thorough process, the Report concluded that: The Australian Government should introduce a federal Status of Children Act that includes power to make orders about the status of children and legal parentage for the purpose of all Commonwealth laws (Recommendation 6).205 The new federal Status of Children Act … should contain provisions specifically dealing with applications for transfer of parentage in surrogacy cases where state and territory Acts do not apply. This should be based on a transfer of parentage process and not a presumption of parentage (Recommendation 12).206

In response to this Report, a term of reference was provided to

the Standing Committee on Legal Policy and Social Affairs to inquire into ‘surrogacy arrangements in Australia and for Australians’. Two Round Table sessions were convened, with the Committee recommending an inquiry into the regulatory and legislative aspects of surrogacy arrangements.207 [page 429]

Parental responsibility v orders for legal parentage 7.56 A person does not have to be a parent — or for that matter a grandparent — to bring an application under the FLA where there is a dispute as to where a child will live, or with whom he or she will spend time. However, questions of standing may still arise. An applicant must establish that they are a person ‘concerned with the care, welfare or development of the child’ (s 65C(c)). In Aldridge & Keaton,208 the Full Court of the Family Court (Bryant CJ, Boland and Crisford JJ) confirmed that a two-step approach must be applied when dealing with an application for parenting orders brought by a person other than a parent or a grandparent: whether that person is concerned with the care, welfare or development of the child (step 1); and, if so, what order should be made that is in the best interests of the child (step 2). In this decision, the court confirmed that s 65C does not prescribe a hierarchy of applicants. Provided the applicant falls within the prescribed criteria for making an application under s 65C, an order may be made in his or her favour: see 8.42. 7.57 It is suggested, however, that parenting orders are far from ideal in circumstances involving surrogacy arrangements as they do not vest legal parentage in the commissioning parent/s and they come to an end when the child reaches 18. In addition there are matters governed by state laws — such as inheritance

(particularly intestacy) and family provision — where parentage can be a relevant issue. In those areas, state law would apply. On a federal level, an obvious historical example has been that the fiscal obligation for child support falls only on the legal parents.209 There are also various sections governing the exercise of the court’s discretion that treat parents differently from non-parents, or effectively prioritise parents over others. An obvious example is the ‘primary’ consideration in the best interests checklist (s 60CC(2)), which puts the parent–child relationship ahead of all other relationships.210

Conclusion 7.58 The legislation in its current form lacks clarity as to the exact scope and application of the provisions of the FLA, resulting in conflicting jurisprudence. The baby Gammy story that hit the headlines of Australian newspapers in August [page 430] 2014 once again ignited the debate revolving around commercial surrogacy.211 The Chief Justice of the Family Court entered the fray and stated: ‘I personally think we should regulate and allow commercial surrogacy in Australia.’212 On 3 December 2015, the Commonwealth Attorney General requested House of Representatives Standing Committee on Social Policy and Legal Affairs to undertake an inquiry into surrogacy arrangements. The committee is due to report back on 30 June 2016. Mention has already been made of the two waves of legislative changes relating to surrogacy (see 7.41). It is suggested that we are entering the third wave,213 and it is envisaged that in due course the law will change to accord with changing social practices.214

1.

W Blackstone, Commentaries on the Laws of England, Book 1, 1765, pp 457–9.

2. 3.

R Burn, Ecclesiastical Law, vol 1, 9th ed by Phillimore, 1842, pp 132–5. See A Dickey, Family Law, 4th ed, Law Book Co, Pyrmont, 2002, pp 288–9 (discussion not retained in current edition); and see generally J Teichman, Illegitimacy: A Philosophical Examination, Basil Blackwell, Oxford, 1982.

4. 5.

W Blackstone, Commentaries on the Laws of England, Book I, 1765, p 454. Attorney-General (Vic) v Commonwealth (1962) 107 CLR 529 (the Marriage Act case).

6.

For High Court authority on the appropriate standard of proof, see Briginshaw v Briginshaw (1938) 60 CLR 336. For the current legislation, see Parentage Act 2004 (ACT); Status of Children Act 1996 (NSW); Status of Children Act 1979 (NT); Status of Children Act 1978 (Qld); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Status of Children Act 1974 (Vic).

7.

8.

9.

See, for example, Administration Act 1903 (WA) s 12A; Family Court Act 1997 (WA) ss 66(2), 69(1); Family Provision Act 1972 (WA) (formally known as the Inheritance (Family and Dependants Provision) Act 1972 (WA)) s 4; Wills Act 1970 (WA) Pt IX. Douglas v Longano (1981) 147 CLR 212.

10. 11.

See ss 188–193. In Vakros & Letsos (2012) 47 Fam LR 172; [2012] FamCAFC 40 at [54], May, AinsleeWallace and Murphy JJ held that the presumption arises out of cohabitation, not casual sexual intercourse.

12. 13.

Sections 69R and 69S of the FLA. See Re Mark (2004) 31 Fam LR 162; (2003) FLC ¶93-173 at [28] per Brown J; Ellison & Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602 at [70] per Ryan J; GreenWilson & Bishop [2014] FamCA 1031 at [32] per Johns J.

14.

Ellison & Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602 at [71] per Ryan J. Section 69S(1A) refers to findings of a court in a ‘reciprocating jurisdiction’ and several jurisdictions are prescribed in the Regulations. Ryan J concluded in Carlton & Bissett (2013) 49 Fam LR 503; [2013] FamCA 143 at [28] that this section is impliedly limited to overseas maintenance orders. See also Family Law Regulations 1984 (Cth) reg 39BA; Schs 4, 4A. Note that reg 39B(4) of the Family Law Regulations 1984 (Cth) provides that any prescription under s 69S(1) is rebuttable.

15. 16.

17.

See, for example, F v Z (2005) 193 FLR 218; [2005] FMCAfam 394 (where parentage testing was ordered despite the application of the presumption in s 69R); Brianna v Brianna (2010) 43 Fam LR 309; FLC ¶93–437 (where parentage testing was ordered despite the application of the presumptions in ss 69R and 69T); TNL & CYT (2005) 33 Fam LR 167; [2005] FamCA 77 (where the court held that the presumption of marriage in s 69P applied and refused to make orders for parentage testing). See Re Michael Surrogacy Arrangements (2009) 41 Fam LR 694; [2009] FamCA 691, where Watts J held that even though the biological father was registered as the father on a New South Wales birth certificate, s 60H(1) (a provision relating to children born via assisted conception) rebutted the presumption in s 69R.

18.

Child Support Assessment Act 1989 (Cth) s 29(2)(a)–(i).

19.

This is the only power under the FLA to issue such a declaration — only when the parentage of a child is at issue in proceedings can a declaration of this sort be made: McK & K v O (2001) FLC ¶93-089. G v H (1993) FLC ¶92-432; TNL & CYT [2005] FamCA 77; F & Z [2005] FMCAfam 394; Brianna v Brianna (2010) 43 Fam LR 309; FLC ¶93-437.

20. 21.

22.

In Ellison & Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602 at [29], Ryan J emphasised that strict compliance with both procedures and reporting requirements are required. See also Mary Keyes and Richard Chisholm, ‘Commercial Surrogacy — Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105 at 114–19. (1992) FLC ¶92-299. See also the unreported Full Court decision in W v J & S [1998] FamCA 44.

23. 24.

(1992) 15 Fam LR 533; FLC ¶92-300. (1993) 17 Fam LR 130; FLC ¶92-432.

25. 26.

McK & K v O (2001) FLC ¶93-089. [2014] FamCA 1170. See also Whitly v Ingham (2013) FCCA 869 at [14] per Terry J.

27. 28.

(2009) 42 Fam LR 369; FLC ¶93-421 at [19]; cf Faulks DCJ in Maurice & Barry (2010) 44 Fam LR 62; [2010] FamCA 687. (1993) 17 Fam LR 130; FLC ¶92-432. See also F v Z (2005) 193 FLR 218.

29. 30.

(2007) FLC ¶93-332. (2009) 42 Fam LR 118; FLC ¶93-412.

31. 32.

(2010) 43 Fam LR 309; FLC ¶93-437. For further discussion of this point, see Bernieres & Dhopal [2015] FamCA 736 at [5260].

33. 34.

J v D (2000) 27 Fam LR 455; FLC ¶93-062. (1999) FLC ¶92-870.

35. 36.

(2010) 43 Fam LR 309; FLC ¶93-437. (2010) FLC ¶93-437 at [176]. For a contrary view, see Carol Smart, ‘Law and the Regulation of Family Secrets’ (2010) 24 International Journal of Law, Policy and Family 397.

37. 38.

(1992) 15 Fam LR 355; FLC ¶92-284. (1994) 18 Fam LR 180; FLC ¶92-504.

39. 40.

(2009) 42 Fam LR 118; FLC ¶93-412. F & R (1992) 15 Fam LR 533; FLC ¶92-300 per Butler J.

41. 42.

See McK & K v O (2001) FLC ¶93-089. See L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [6.14]–[6.16] for additional material on the historical background relating to assisted conception.

43.

In 1983, s 5A was inserted in the FLA. This provision was designed to give parental status to the non-biological parent, but only if this was the situation under the

44.

45. 46. 47.

state and territory legislation. This section was repealed and replaced with s 60B and the currently numbered s 60H. Parentage Act 2004 (ACT) s 11(4). See also the definition of ‘domestic partner’ in Legislation Act 2001 (ACT) s 169; Status of Children Act 1996 (NSW) s 14(1A); Status of Children Act 1978 (NT) s 5DA; Status of Children Act 1978 (Qld) ss 19B– 19E; Family Relationships Act 1975 (SA) s 10C(3); Status of Children Act 1974 (Tas) s 10C; Status of Children Act 1974 (Vic) ss 13–14; Artificial Conception Act 1985 (WA) s 6A. In this chapter, the more contemporary term ‘assisted conception’ is used instead of ‘artificial conception’ or ‘artificial reproduction technology’ (ART). Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Sch 3A. See Family Law Regulations 1984 (Cth) regs 12C and 12CA for relevant prescribed laws. There are no prescribed regulations made pursuant to FLA s 60H(3).

48. 49.

[2015] FamCA 964. (2009) 223 FLR 158.

50.

For an example of the court holding that a heterosexual couple was in a de facto relationship at the time of conception, see Baker v Landon (2010) 43 Fam LR 675. For examples involving same-sex relationships, see Lusito v Lusito (2011) 247 FLR 473 and Maurice v Barry (2010) 44 Fam LR 62. See R Chisholm, ‘Did the 2006 Amendments Downgrade Non-Parents? Aldridge v Keaton’ (2010) 24 Australian Journal of Family Law 123.

51. 52. 53.

(2009) 42 Fam LR 369 at [16]–[22]; FLC ¶93-421 at 83,815. Connors & Taylor [2012] FamCA 207 at [88] per Watts J.

54.

Parentage Act 2004 (ACT) s 11; Status of Children Act 1996 (NSW) s 14; Status of Children Act 1978 (NT) Pt IIIA; Status of Children Act 1978 (Qld) Pt 3 Div 2; Family Relationships Act 1975 (SA) Pt 2A; Status of Children Act 1974 (Tas) Pt III; Status of Children Act 1974 (Vic) Pts II and III; Artificial Conception Act 1985 (WA). The Australian Capital Territory has repealed its Artificial Conception Act and status of children legislation, and passed the Parentage Act 2004 (ACT), which consolidates the territory’s laws in those areas.

55.

56. 57.

58.

See M Keyes and R Chisholm, ‘Commercial Surrogacy — Some Troubling Family Law Issues’ (2013) 27 Australian Journal of Family Law 105 at 112. Parentage Act 2004 (ACT) s 11(2), (3); Status of Children Act 1996 (NSW) s 14(1), (1A), (3); Status of Children Act 1979 (NT) s 5C; Status of Children Act 1978 (Qld) ss 19(2)(a), 19E(2)(a), 23(2)(a); Family Relationships Act 1976 (SA) s 10C(1), (2); Status of Children Act 1974 (Tas) s 10(C)(3), (4); Status of Children Act 1974 (Vic) ss 13(1), 14(1), 15(1), 16(1); Artificial Conception Act 1985 (WA) s 5. Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1996 (NSW) s 14(2); Status of Children Act (NT) s 5F; Status of Children Act 1978 (Qld) ss 17(2)(b), 18(2)(b), 19(2)(d)(ii), 19C, 19D(2), 19E(4), 21(1), 22(2), 23(4); Family Relationships Act 1976 (SA) s 10C(4); Status of Children Act 1974 (Tas) s 10C(2); Status of Children Act 1974 (Vic) ss 10C(2), 10D(2), 13(1),14(1), 15(1), 16(1); Artificial Conception Act 1985 (WA) s 7(2).

59.

(1996) 21 Fam LR 186.

60. 61.

Ibid at 197. (2002) 28 Fam LR 579; FLC ¶93-096.

62.

63.

Apparently drawing on the views expressed in D Sandor, ‘Children Born from Sperm Donation: Financial Support and Other Responsibilities in the Context of Discrimination’ (1997) 4 Australian Journal of Human Rights 175. (2002) 28 Fam LR 579; FLC ¶93-096 at 645.

64. 65.

(2004) 31 Fam LR 162; (2003) FLC ¶93-173. (1999) 24 Fam LR 635; FLC ¶92-848.

66. 67.

(1999) FLC ¶92-848 at [45]. Re Patrick (2002) 28 Fam LR 579; FLC ¶93-096 at 646.

68. 69.

[2010] FamCA 734. [2011] NSWDC 100, 17 August 2011 (Walmsley SC).

70.

For a discussion of this case, as well as the issues regarding birth registration involving known donors and non biological parents, see O Rundle and S Hardy, ‘Australian Birth Certificates: The Best Interests of No One at All’ (2012) 26 Australian Journal of Family Law 116. (2013) 49 Fam LR 510; [2013] FamCA 430. For a detailed discussion of this case, see Fiona Kelly, ‘Parenting Outside the Normative Framework: Australia’s Single Mothers by Choice’ (2015) 29 Australian Journal of Family Law 90.

71.

72. 73.

Groth & Banks (2013) 49 Fam LR 510; [2013] FamCA 430 at [22], [26] per Cronin J. See Judiciary Act 1983 (Cth) ss 79, 80.

74. 75.

Groth & Banks (2013) 49 Fam LR 510; [2013] FamCA 430 at [38] See B Fehlberg et al, Australian Family Law The Contemporary Context, 2nd ed, Oxford University Press, South Melbourne, 2015, p 123, fn 275.

76. 77.

(2004) 31 Fam LR 162; (2003) FLC ¶93-173. Commonwealth Attorney-General, Family Law Council, Report on Parentage and the Family Law Act, December 2013.

78. 79.

Ibid, pp 59–60. Ibid, p 61, Recommendation 8.

80. 81.

(1996) 21 Fam LR 186; FLC ¶92-716. Ibid. See also Child Support (Assessment) Act 1989 (Cth) s 5. The result at the time of this decision was to exclude same-sex co-parents from liability for child support. This is no longer the case.

82. 83.

(2014) 52 Fam LR 648; [2014] FCCA 2521. Child Support Assessment Act 1989 (Cth) s 29(2)(i).

84. 85.

Bateman & Kavan [2014] FCCA 2521 at [52]. Ibid at [54].

86. 87.

(2003) 31 Fam LR 22. Harman J specifically stated that to distinguish liability based on the mode of conception would make an ‘ass of the law’: Bateman & Kavan [2014] FCCA 2521 at

[86]–[87]. 88. 89.

(2003) 31 Fam LR 22; FLC ¶98-020 at [22]. For further discussion, see A Sifris, ‘Known Semen Donors: To Be or Not to Be a Parent’ (2005) 11 Journal of Law and Medicine 230.

90.

See, for example, Senate Select Committee on the Human Embryo Experimentation Bill 1985, Parliament of Australia, Human Embryo Experimentation in Australia, 1986 (majority report). (2001) 28 Fam LR 260; DFC ¶95-240. Though note Marriage of A & B (1989) 13 Fam LR 798; (1990) FLC ¶92-126, a case concerning procedural matters, where it seems the use of frozen embryos by the wife after separation was a central dispute between the parties. See also G & G [2007] FCWA 80.

91.

92. 93.

(1996) 5 Tas R 365. Pamela Stewart and Anita Stuhmcke, ‘The Child in Utero and ex Utero’ in Geoff Monahan and Lisa Young (eds), Children and the Law in Australia, LexisNexis Butterworths, Sydney, 2008, p 81; Rosalind Croucher and Francesca Dominello, ‘The New(er) Family in Australia and New Zealand: Definitions, Rights and Responsibilities’ in Rosalind Croucher (ed), Families and Estates: A Comparative Study, Kluwer Law International, The Hague, Netherlands, 2005, p 126.

94.

New South Wales Law Reform Commission, Uniform Succession Laws: Intestacy, Report No 116, 2007. Assisted Reproductive Technology Act 2007 (NSW) s 23. For details of the legislation relating to frozen embryos, see Assisted Reproductive Technology Act 2007 (NSW) ss 17, 19–26; Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c) (iv); Assisted Reproductive Treatment Act 2008 (Vic) ss 16, 17, 20–2, 30, 32–4, 36, 46; Human Reproductive Technology Act 1991 (WA) ss 20, 24, 26.

95.

96. 97.

(SC (Vic), Gillard J, No 6553 of 1998, 21 July 1998, unreported). AB v Attorney-General (Vic) [2005] VSC 180.

98.

This Act has since been repealed and replaced by the Assisted Reproductive Treatment Act 2008 (Vic). See AB v Attorney-General (Vic) [2005] VSC 180 at [92]. See also Y v Austin Health (2005) 13 VR 363.

99.

100. [2011] NSWSC 478. 101. [2010] QSC 118. 102. See, more recently, Re H, AE (No 2) [2012] SASC 177, where orders were made for the release of the deceased’s sperm to his former wife for the purpose of IVF. 103. Assisted Reproductive Technology Act 2007 (NSW) s 23; Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(iv); Assisted Reproductive Treatment Act 2008 (Vic) s 46; Human Reproductive Technology Act 1991 (WA) s 18(1)(f). 104. Commonwealth, National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007. These guidelines are under review: see www.nhmrc.gov.au/guidelinespublications/e78 (accessed 20 November 2015). 105. Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption:

Final Report, Victorian Recommendation 52.

Government

Printer,

Melbourne,

2007,

p

98,

106. Through enacting the Infertility (Medical Procedures) Act 1984 (Vic). 107. Assisted Reproductive Technology Act 2007 (NSW). 108. Assisted Reproductive Treatment Act 1988 (SA); Prohibition of Human Cloning for Reproduction Act 2003 (SA). 109. Human Reproductive Technology Act 1991 (WA). 110. Legislation is being drafted in the Northern Territory. 111. Commonwealth, National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007. These guidelines are under review: see www.nhmrc.gov.au/guidelinespublications/e78 (accessed 20 November 2015). 112. See L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [6.26]–[6.27] for additional material on the historical background relating to cloning and embryo research. 113. For a more detailed summary of the legislation, see Commonwealth, National Health and Medical Research Council, Booklet 1: General Information about the Prohibition of Human Cloning Act 2002 and Research Involving Human Embryos Act 2002, 2006. 114. The current state and territory legislation is Human Cloning and Embryo Research Act 2004 (ACT); Human Cloning for Reproduction and Other Prohibited Practices Act 2003 (NSW) and Research Involving Human Embryos (New South Wales) Act 2003 (NSW); Research Involving Human Embryos and Prohibition of Human Cloning for Reproduction Act 2003 (Qld); Prohibition of Human Cloning for Reproduction Act 2003 (SA) and Research Involving Human Embryos Act 2003 (SA); Human Cloning for Reproduction and Other Prohibited Practices Act 2003 (Tas) and Human Embryonic Research Regulation Act 2003 (Tas); Prohibition of Human Cloning for Reproduction Act 2008 (Vic) and Research Involving Human Embryos Act 2008 (Vic); Human Reproductive Technology Act 1991 (WA). 115. For details regarding the history of accessing assisted conception procedures in Australia, see A Sifris, ‘Dismantling Discriminatory Barriers Access to Reproductive Services for Single Women and Lesbian Couples’ (2004) 30 Monash Law Review 229 at 229–68. 116. (1996) 66 SASR 486. 117. MW, DD, TA & AB v Royal Women’s Hospital (1997) DFC ¶95-183. 118. W v D & Royal Women’s Hospital (2000) EOC ¶93-045. 119. (2000) 99 FCR 116. 120. Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1. 121. Senate Standing Committee of Legal and Constitutional Affairs, Parliament of Australia, Inquiry into the Provisions of the Sex Discrimination Amendment Bill (No 1) 2000, AGPS, Canberra, 2001. 122. Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c).

123. See Human Reproductive Technology Act 1991 (WA) s 23; Interpretation Act 1984 (WA) s 13A. 124. Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption: Final Report Victorian Government Printer, Melbourne, 2007, Chs 4, 5. 125. Assisted Reproductive Treatment Act 2008 (Vic) s 10. 126. Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c). 127. South Australian Council on Reproductive Technology, Age and Eligibility Report, 2000. 128. Assisted Reproductive Technology Act 2007 (NSW) s 3(b)(i); Assisted Reproductive Technology Act 1988 (SA) s 4A; Assisted Reproductive Treatment Act 2008 (Vic) s 5(a); Human Reproductive Technology Act 1991 (WA) s 23(1)(e)(ii). 129. See Victorian Law Reform Commission (VLRC), Assisted Reproduction and Adoption: Should the Current Eligibility Criteria in Victoria be Changed?, Consultation Paper, VLRC, Melbourne, 2003, pp 55–60. 130. For a discussion of the arguments in this area, see Emily Jackson, Regulating Reproduction: Law, Technology and Autonomy, Hart Publishing, Oxford, 2001. 131. Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption: Final Report, Victorian Government Printer, Melbourne, 2007, Ch 5. 132. See Assisted Reproductive Treatment Act 2008 (Vic) ss 11, 12, 14, 15, 85. 133. TRV v Department of Health & Human Services (Human Rights) [2015] VCAT 1188. 134. Assisted Reproductive Treatment Act 2008 (Vic) s 14(1)(b), (2). 135. Ibid s 14(3). 136. TRV v Department of Health & Human Services (Human Rights) [2015] VCAT 1188 at [15]. 137. Ibid at [172]. 138. For discussion of the possible use of adoption in the context of surrogacy arrangements, see P Janu, ‘Surrogacy Arrangements in Australia: Analysis of the Legal Framework’ (1995) 9 Australian Journal of Family Law 200 at 212–17. 139. See Re W (Adoption) (1998) 23 Fam LR 538; Re D & E (2000) 26 Fam LR 310; Re A & B (2000) 26 Fam LR 317. 140. (2000) 26 Fam LR 234; FLC ¶93-021. 141. (FamCA, Jordan J, 19 December 1997, unreported). 142. Re Evelyn (1998) 23 Fam LR 53; FLC ¶92-807. 143. See L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009 at [6.38]–[6.39] for additional material on the historical background relating to surrogacy. 144. J Millbank, ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”?’ (2011) 35 Melbourne University Law Review 165 at 170. 145. N Berkovic, Hope Lifts on Surrogacy Law, Mission and Justice, 31 March 2008, www.missionandjustice.org/hope-lifts-on-surrogacy-law-australiachildrenhuman-rights (accessed 5 September 2015). 146. The Standing Committee of Attorneys-General Joint Working Group, A Proposal for

National Model to Harmonise Regulation of Surrogacy, 2009. 147. The Australian Capital Territory had already enacted the Parentage Act 2004 (ACT). The New South Wales Legislative Council’s Standing Committee on Law and Justice reviewed the matter, and the Surrogacy Act 2010 (NSW) was subsequently enacted. Queensland set up an Altruistic Surrogacy Committee to carry out the review and subsequently enacted the Surrogacy Act 2010 (Qld). South Australia’s Social Development Committee review is found in its 26th Report: Inquiry into Gestational Surrogacy, 2007; and the Family Relationships Act 1975 (SA), Births Deaths and Marriages Registration Act 1996 (SA) and Assisted Reproductive Treatment Act 1988 (SA) were all amended by the Statutes Amendment (Surrogacy) Act 2009 (SA). Victoria’s review was undertaken as part of the Victorian Law Reform Commission’s paper Assisted Reproductive Technology and Adoption, Position Paper Two: Parentage, 2005, and new provisions were enacted in the Assisted Reproductive Treatment Act 2008 (Vic) (these included new provisions in the Status of Children Act 1974 (Vic)). Western Australia enacted the Surrogacy Act 2008 (WA). 148. Parentage Act 2004 (ACT) s 45; Surrogacy Act 2010 (NSW) s 11; Surrogacy Act 2010 (Qld) s 54. 149. Surrogacy contracts in the Northern Territory are indirectly regulated by the National Health and Medical Research Council’s Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, 2007. 150. For a detailed description and comparison of the legislation in the various states and the Australian Capital Territory, see Stephen Page and Alexandra Harland, ‘Tiptoe through the Minefield: A State by State Comparison of Surrogacy Laws in Australia’ (2011) 1 Family Law Review 198. 151. Surrogacy Act 2010 (NSW) s 27(1); Surrogacy Act 2010 (Qld) s 22(2)(f); Assisted Reproductive Treatment Act 2008 (Vic) s 40(1)(b); Status of Children Act 1974 (Vic) s 23(2)(a); Surrogacy Act 2008 (WA) s 17(a)(i). 152. See Parentage Act 2004 (ACT) s 24(d); Family Relationships Act 1975 (SA) s 10HA(2) (b) (viii); Surrogacy Act 2008 (WA) s 21(4)(b). 153. Surrogacy Act 2008 (WA) s 19. 154. See Family Relationships Act 1975 (SA) s 10HA(2)(b)(iii). 155. See Parentage Act 2004 (ACT) s 26(1); though note s 26(3). 156. Status of Children Act 1974 (Vic) s 22(1); Surrogacy Act 2008 (WA) s 21. 157. Surrogacy Act 2008 (WA) s 13. 158. Surrogacy Act 2010 (Qld) s 22(2)(a); Surrogacy Act 2010 (NSW) s 22. 159. Family Relationships Act 1974 (SA) s 10HB(6). 160. A detailed account of the various statutes and their similarities and differences may be found in J Millbank ‘The New Surrogacy Parentage Laws in Australia: Cautious Regulation or “25 Brick Walls”?’ (2011) 35 Melbourne University Law Review 165 at 177–86. 161. M Keyes, ‘Cross-border Surrogacy Agreements’ (2012) 26 Australia Journal of Family Law 28 at 32. 162. P Boers, ‘Surrogacy — The Varied Approaches of the States and Territories’ (2011) 22 Australia Journal of Family Law 28 at 28.

163. M Keyes, ‘Cross-border Surrogacy Agreements’ (2012) 26 Australia Journal of Family Law 28 at 31. 164. New South Wales: Supreme Court of New South Wales (Surrogacy Act 2010 (NSW) s 4); Queensland: Children’s Court (Surrogacy Act 2010 (Qld) s 13); South Australia: Youth Court of South Australia (Family Relationships Act 1975 (SA) s 10HB); Victoria: either the County Court or the Supreme Court (Status of Children Act 1974 (Vic) s 18); Tasmania: Magistrates Court (Children’s Division) (Surrogacy Act 2012 ss 4, 13); Western Australia — Family Court of Western Australia (Family Court Act 1997 (WA) s 36(2)). 165. [2010] QDC 439. This application related to a surrogacy arrangement that had been entered into prior to the commencement of the legislation. 166. [2012] NSWSC 445. See also AP v RD [2011] NSWSC 1389. In both cases the surrogacy arrangements had been entered into prior to the commencement of the New South Wales legislation and were classified as pre-commencement surrogacy arrangements. 167. Application of MM & KF re FM [2012] NSWSC 445 at [1]. 168. Note that in the Australian Capital Territory, South Australia and Victoria, there are no direct provisions providing for the enforcement of reimbursement of the birth mother’s expenses and these will be governed by ordinary contract law. 169. Introduced by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Sch 3A. See also the definition of a ‘child’ in s 4(1) of the Family Court Act 1997 (WA). 170. (2009) 41 Fam LR 694. 171. (2004) 31 Fam LR 162; (2003) FLC ¶93-173. 172. Re Michael: Surrogacy Arrangements (2009) 41 Fam LR 694 at [25]. 173. See, for example, Hutchens & Franz [2009] FamCA 414; O’Connor & Kasemsarn [2010] FamCA 987. 174. See Sam Everingham, Martyn Stafford Bell and Karen Hammarberg, ‘Australians’ Use of Surrogacy’ (2014) 201 Medical Journal of Australia 330. See also Jenni Millbank, ‘Responsive Regulation of Cross Border Assisted Reproduction’ (2015) 23 Journal of Law and Medicine 346; Adiva Sifris, ‘The Family Courts and Parentage of Children Conceived through Overseas Commercial Surrogacy Arrangements: A Child-Centred Approach’ (2015) 23 Journal of Law and Medicine 396. 175. See Sam Everingham, Martyn Stafford Bell and Karen Hammarberg, ‘Australians Use of Surrogacy’ (2014) 201 Medical Journal of Australia 330 at 331. 176. See Sam Everingham, ‘International Trends in Utilisation of Surrogacy’, on file with the author — a survey was conducted of 54 surrogacy agencies asking them to report on the number of clients who participated in overseas commercial surrogacy arrangements over the period 2012–14 by source country of the commissioning parents. 177. See UNSW, National Perinatal Epidemiology and Statistics Unit (NPESU), Assisted Reproductive Technology in Australia & New Zealand, 2012, https://npesu.unsw.edu.au/surveillance/assisted-reproductive-technology-australia-new-zealand-2012 (accessed 9 December 2015). Data received from Surrogacy Australia on file with

the author predicted that in 2015 this would peak at 25. 178. Commonwealth Department of Immigration and Citizenship, Submission to the Family Law Council, International Surrogacy Arrangements, Surrogacy Inquiry, June 2013, p 2. 179. M Keyes, ‘Cross-border Surrogacy Agreements’ (2012) 26 Australian Journal of Family Law 28 at 40. This article contains a thorough analysis of the Australian law regulating international and intra-Australian surrogacy arrangements. 180. See Ellison & Karnchanit [2012] FamCA 602, where the parties had entered into a commercial surrogacy arrangement and were seeking a declaration of parentage, as well as parentage orders. Ryan J concluded at [49] that s 60HB only applies ‘[i]f a court has made an order under a prescribed law of a State and Territory’. See also McQuinn & Shure [2011] FamCA 139, where Murphy J granted leave to adopt on the basis that the husband was a parent under Canadian law. Most recently, see Bernieres & Dhopal [2015] FamCA 736. 181. See, for example, Wilkie v Mirkja [2010] FamCA 667 and Edmore v Bala [2011] FamCA 731, where orders for parental responsibility were made even though the surrogate mother had not been served with the application. See also Ronalds & Victor [2011] FamCA 389; Collins & Tangtoi [2010] FamCA 878. 182. Ellison & Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602; Green-Wilson & Bishop [2014] FamCA 1031. 183. (2004) 31 Fam LR 162; (2003) FLC ¶93-173. 184. (2003) FLC ¶93-173 at [45]. 185. [2011] FamCA 123. 186. [2011] FamCA 502. 187. Ibid. In Findlay v Punyawong [2011] FamCA 503, Watts J on the same basis also referred the papers to the relevant authorities. In Johnson v Chompunut [2011] FamCA 505 and Hubert v Juntasa [2011] FamCA 504, Watts J refrained from reporting the applicants to the Director of Public Prosecutions, as at the time they entered into the surrogacy arrangements, the law in New South Wales did not make it an offence to enter into commercial surrogacy arrangements outside New South Wales. 188. (2012) 48 Fam LR 33; [2012] FamCA 602. See also, for example, Johnson v Chompunut [2011] FamCA 505; Hubert & Juntasa [2011] FamCA 504; Gough & Kaur [2012] FamCA79. 189. Ellison & Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602 at [73]. For further discussion of this case, see Gillian Triggs and Graeme Edgerton, ‘Rights of the Child’ (2013) 51 Law Society Journal 57; Philippa Trowse, ‘Surrogacy — Competing Interests or a Tangled Web’ (2013) 33 The Queensland Lawyer 199. 190. This decision was followed in Blake [2013] FCWA 1 at [51], dealing with the stepparent adoption of children born after parties entered into an overseas commercial surrogacy arrangement. In order to trigger the step-parent provisions, it was necessary for the biological father to be regarded as the parent of the children. 191. See, for example, Fisher-Oakley & Kittur [2014] FamCA 123 at [134]–[139] per Cronin J; Green-Wilson & Bishop [2015] FamCA 1031 per Johns J; Cowley & Yuvaves [2015]

FamCA 111 at [26]–[27] per Thornton J. Millbank points out the importance of these guidelines as there is seldom a contradictor: see Jenni Millbank, ‘Legal Parentage for Australians Engaged in International Surrogacy’ (2013) 27 Australian Journal of Family Law 135 at 144–5. Keys also notes that in the vast majority of cases, parenting orders are made by consent: see Mary Keyes, ‘Cross-Border Surrogacy Agreements’ (2011) 26 Australian Journal of Family Law 28 at 42. 192. [2013] FamCA 424. 193. For extensive criticism of Ellison, see Philippa Trowse, ‘Surrogacy-Competing Interests or a Tangled Web?’ (2013) 33 The Queensland Lawyer 199. 194. Mason & Mason [2013] FamCA 424 at [33]. 195. Such an order would then be made under s 60HB: see Mason & Mason [2013] FamCA 424 at [34], where Ryan J conceded ‘that ultimately state law will govern the determination of parentage [of children born under surrogacy arrangements] and that state law will be recognised by federal law’. 196. Green-Wilson & Bishop [2014] FamCA 1031. Such orders were made notwithstanding that the surrogate was either married or in a de facto relationship. If s 60H(1) applied, the surrogate and her partner were the parents of the child. 197. Surrogacy Act 2010 (NSW) s 8. 198. Assisted Reproductive Treatment Act 2008 (Vic) s 44(1). 199. Green-Wilson & Bishop [2014] FamCA 1031 at [40]. 200. Ibid at [44]. 201. [2015] FamCA 111 at [32]. 202. [2015] FamCA 736. 203. Bernieres & Dhopal [2015] FamCA 736. Please note that this decision is, so far as the authors are aware, on appeal to the Full Court of the Family Court. See, most recently, Saliba & Romyen [2015] FamCA 927, where Berman J, on making parenting orders, reviewed the current state of the law. In this case there was no application for parentage orders. 204. Bernieres & Dhopal [2015] FamCA 736 at [121]. 205. Family Law Council, Report on Parentage and the Family Law Act, December 2013, Recommendation 6. 206. Ibid, Recommendation 12. There were a number of other of other recommendations also dealing with children born from commercial surrogacy arrangements. 207. See House of Representatives Standing Committee on Social and Legal Affairs, Parliament of Australia, Roundtable on Surrogacy, 2015. 208. [2009] FamCAFC 229; FLC ¶93-421. 209. B v J (1996) 21 Fam LR 186; FLC ¶92-716. See also the discussion at 7.25–7.26. 210. For a detailed discussion of the various ways parenting orders differ from parentage orders, see Adiva Sifris, ‘The Family Courts and Parentage of Children Conceived through Overseas Commercial Surrogacy Arrangements: A Child-Centred Approach’ (2015) 23 Journal of Law and Medicine 396. 211. ‘Baby Gammy: WA Parents of a Girl Born to Thai Surrogate Deny Abandoning Twin

Brother’, ABC News (online), 5 August 2014, www.abc.net.au/news/2014-08-04/wa-couple-denies-they-abandoned-baby-gammy/5644850 (accessed 31 January 2016). 212. Bridget Brennan, ‘Commercial Surrogacy should be Legalised, Family Court Chief Justice Bryant says’, ABC News, 18 April 2015, www.abc.net.au/news/2015-04-18/commercial-surrogacy-should-be-legalised-family-court-justice/6402924 (accessed 13 January 2016). 213. See R Sifris, K Ludlow and A Sifris ‘Commercial Surrogacy: What Role for the Law in Australia?’ (2015) 23 Journal of Law and Medicine 275. 214. See A Sifris, ‘Lesbian Parenting in Australia: Demosprudence and Legal Change’ in P Gerber and A Sifris (eds), Current Trends in the Regulation of Same-Sex Relationships, Federation Press, Annandale, New South Wales, 2010, p 8.

[page 431]

8 CHILD-RELATED DISPUTES: THE LEGISLATIVE FRAMEWORK ___________________________

Introduction 8.1 We have seen in earlier chapters how Australia adopted its family laws from the UK, and that these were initially administered in state courts. With the passage of the Family Law Act 1975 (Cth) (FLA), a new system of (mostly) federal family courts evolved with a view to developing a model of service delivery that was particularly suited to families and their disputes. At the heart of this approach was the desire to protect children and to advance their interests. In the next two chapters we will look at the role the court plays in helping to resolve disputes that not only concern children, but are also essentially about those children. Most obviously this includes disputes between parents about where their children will live, who they will have contact with and how they will be raised. As we shall see, however, the court’s powers go beyond simply making a determination between disputing parents. In this chapter, a broad overview will be given of the current legislative framework that is contained in Pt VII of the Act. Particular aspects of Pt VII have been the subject of much

controversy and public debate; this has played an important role in shaping the current provisions which have undergone considerable reform. We have therefore included a brief consideration of the background to the current legislative regime, including the reason for reforms that commenced on 7 June 2012 as a result of the passage of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011.1 To avoid confusion, and unless otherwise stated, we have referred to the provisions of the FLA as amended by that Act. To put the significant changes to family law in the last two decades into perspective, a very brief summary of the key aspects of parenting law as it applied before 1996 is also included. By the end of this chapter, it will be obvious that, as in other areas of family law, a very broad discretion is given to decision-makers. The exercise of that discretion will be considered in more detail [page 432] in the next chapter. This chapter also deals with the question of the abduction of children out of, or into, Australia. Before turning to these matters, however, it is instructive to revisit the United Nations Convention on the Rights of the Child 1989 and consider its role in shaping family law legislation in Australia.

The United Nations Convention on the Rights of the Child 1989 8.2 Australia’s ratification (on 17 December 1990) of the United Nations Convention on the Rights of the Child 1989 was a very significant development for family law. The Convention represents the most comprehensive statement of children’s rights

ever drawn up at the international level.2 It covers a wide range of matters encompassing economic, social, cultural, civil and political rights for children. While the Convention does not, upon ratification, operate of its own force in domestic law, by ratifying the Convention Australia has given a commitment to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the Convention. In practice, this means that the Commonwealth Government must examine existing laws and policies in Australia, at Commonwealth, state and territory levels, to ascertain whether they comply with the Convention’s articles. Where necessary, the Commonwealth Government should introduce legislation to ensure compliance with the Convention and also encourage the states and territories to make necessary changes. The Australian Human Rights Commission is charged with the obligation of examining whether existing and proposed laws ‘recognise and protect the human rights of children in Australia’, and reporting its findings to the Minister.3 It is the National Children’s Commissioner, first appointed in 2013, who has the delegated responsibility for carrying out this function on behalf of the Commission. A yearly report must be submitted to the Minister and, in performing their functions, the Commissioner must have regard to the Convention, among other things.4 8.3 Australia’s compliance with its obligations under the Convention is being monitored at an international level. Practically speaking, the enforcement provisions of the Convention are weak, in that the only sanction which exists is the possibility of an unfavourable report from the Commission. To date, Australia’s responsiveness to its obligation to implement the Convention has been variable: while there clearly has been compliance in some areas, including some [page 433]

implementation in the family law area, in other areas concerns continue to be expressed about the lack of appropriate action to meet Australia’s commitments under the Convention.5 8.4 The United Nations Convention on the Rights of the Child has been of particular significance in shaping the reforms to Pt VII of the FLA. The areas in which the influence of the Convention can be seen will be examined in the course of the discussion of Pt VII. Where relevant, attention will also be drawn to aspects of the Convention that have arguably not been adequately reflected in the FLA as amended; for example, in relation to Art 12 dealing with the child’s right to be heard in proceedings affecting him or her, either directly, or indirectly through a representative or appropriate body. Shortly after major reforms were introduced in 1996, the Full Court of the Family Court handed down its decision in the case of B & B: Family Law Reform Act 1995.6 In this important decision, the Full Court took the opportunity to comment on the relevance of the Convention in interpreting Pt VII of the FLA. Both the Attorney-General and the Human Rights and Equal Opportunity Commission intervened in this case, the facts of which centred on the issue of relocation (for further discussion of this topic, see 9.116ff). In contrast to all other parties to these proceedings, the Attorney-General argued that the new provisions of the FLA provided a code, were unambiguous and that therefore it was unnecessary to refer to the Convention in interpreting these provisions. Conversely, the Commission submitted: … that the relevance of UNCROC was substantial — it is part of the platform providing the underlying principles of the Reform Act. Its legal relevance is that because the Act does not clearly create a precedence of rights (other than that the best interests of the child are paramount), the Convention assists by providing a basis for construction that is consistent with international norms — something that is to be preferred if legitimately open to the Court. That is to say, s 60B, s 65E and s 65F are to be interpreted within the context of international human rights principles insofar as that interpretation is compatible with Parliament’s express intention in the Reform Act.7

[page 434] Though not relevant to the outcome of the case at hand, the Full Court reviewed the authorities in this area in detail, and listed numerous bases upon which it rejected the Attorney-General’s submissions. Indeed, it considered the Convention: … must be given special significance because it is an almost universally accepted human rights instrument and thus has much greater significance for the purposes of domestic law than does an ordinary bilateral or multilateral treaty not directed at such ends.8

Having found that the Convention could be referred to in the interpretation of Pt VII, the Full Court noted that nothing in the Convention was inconsistent with the approach the court (or indeed earlier courts) had adopted in deciding relocation cases.9 The relationship between the Convention and the FLA has been raised, if not resolved, more recently in High Court proceedings, in the context of the mandatory detention of immigrant children: B (Infants) & B (Intervener) and Minister for Immigration and Multicultural and Indigenous Affairs.10 Proceedings were brought under Pt VII seeking the release of two boys from detention. The Chief Justice of the Family Court of Australia has described the majority decision of the Full Court in this case as follows: [T]he majority held that [the Convention] had been incorporated into the Family Law Act by the Family Law Reform Act through its external affairs power. Thus … the Family Court did have jurisdiction to make orders releasing children from detention centres. … [T]he majority … agreed with the Full Court of the Federal Court in the decision of Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [(2003) 197 ALR 241] that the relevant section of the Migration Act should be interpreted and applied in a manner consistent with established rules of international law and in a manner which accords with Australia’s treaty obligations. Nicholson CJ and O’Ryan J stated that the principle enunciated in Al Masri ‘gains even greater strength in relation to children’. Their Honours considered the possible effect of [the Convention] as a matter highly relevant to the proceedings and concluded that they found it ‘inconceivable’ that the Federal Parliament, in enacting the Migration Act 1958 (Cth), would have contemplated the lengthy detention of children … The majority … referred in

particular to paragraphs (b), (c) and (d) of Article 37 of [the Convention] and found that the indefinite detention of children is incompatible with the Article and constituted a ‘serious breach of Australia’s obligations under the Convention’.

[page 435] The court held that the Migration Act was no bar to the Court exercising its welfare jurisdiction and ordering the release of children from detention.11

The High Court unanimously disagreed with the Full Court on the last point, finding instead that the Family Court had no jurisdiction either to order the release of children from detention or indeed to make general orders concerning the welfare of detained children: Minister for Immigration and Multicultural and Indigenous Affairs v B (No 3).12 This is discussed further in relation to the Family Court’s welfare power: see 8.116ff. Given the lack of jurisdiction, the High Court did not need to address the question of the incorporation of the Convention into the FLA. Callinan J, the only High Court justice to consider the matter, disagreed with the Full Court on this point also; however, the Chief Justice of the Family Court of Australia has pointed out his Honour’s limited consideration of the materials relied on by the Full Court in reaching their decision.13 It is argued, therefore, that the Full Court’s decision on the incorporation of the Convention into the FLA remains relevant.14 However, on 7 June 2012 the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) added a new object for Pt VII: ‘to give effect to the Convention’ (s 60B(4)). The Bill’s Explanatory Memorandum was explicit that the purpose of this amendment: … is to confirm, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Act, to the extent its language permits, consistently with Australia’s obligations under the Convention. The Convention may be considered as an interpretive aid to Part VII of the Act. To the extent that the Act departs from the Convention, the Act would prevail. This provision is not equivalent to incorporating the Convention into domestic law. (emphasis added)15

[page 436] Reflecting this, Bryant CJ, in the Full Court decision of Re Jamie,16 stated that s 60B(4) does not have the effect of incorporating the Convention into domestic law. This case provides a recent example of the use of the Convention as an aid to interpretation of the provisions of the FLA. Her Honour refers directly to Arts 5 and 12 of the Convention in concluding that the Family Court should not override the decisions of competent children in relation to gender reassignment surgery.17

Proceedings in respect of children under the FLA Background to the current legislative regime 8.5 Since its inception, courts exercising jurisdiction under the FLA have had a broad discretionary power to make orders to resolve parenting disputes. In a dispute between two biological parents, the court would typically make three types of orders: a guardianship order dealt with who had decision-making power in relation to long-term matters (schooling, religion, major medical matters, etc.); a custody order dealt with where the child was to live on a day-to-day basis; and an access order permitted someone who did not have custody to have contact with the child (this could include those other than parents, such as grandparents). Most commonly, guardianship would have been joint between parents, and custody would have been allocated to one parent, with the other parent having an order permitting access. Parents who were in agreement as to these things, but wanted them formalised, could lodge consent orders with the court or register a child agreement. In the absence of any contrary order or registered agreement, parents were joint guardians and custodians of their

children, though they could exercise these powers individually: see 8.25ff. If the parents were in disagreement, the court was directed to have regard to the child’s ‘welfare’ as the paramount consideration (commonly known as the paramountcy principle) in determining what orders to make. For many years, the only other guide in the FLA as to how to determine how a child’s welfare would be best promoted, was the mandatory and extensive ‘best interests checklist’: then contained in s 68F(2). Having considered the required matters, the court could make any order it thought appropriate in the circumstances. For reasons that are discussed in the next chapter, it was common at this time to see orders where the pre-separation primary caregiver to the child was awarded custody, with the other parent (usually the father) having access; a typical access pattern being every second weekend and half the school holidays. 8.6 The Family Law Council was instrumental in raising concerns about the way the system was operating. It argued that the prevailing custody and access model tended to create a mentality in which separating parties were encouraged [page 437] to think of themselves as winners and losers in the custody battle. Coupled with this was a prevailing belief that parents had a prima facie right to have access to their children.18 The Council observed that there was a tendency by the court to award access as something of a consolation prize for the ‘losing parent’, brought about, to a large extent, by the fact that the same considerations were stated to apply to custody and access: thus a parent unsuccessful in a closely fought custody dispute would almost automatically be granted access to the child, without a full examination of whether, in all the circumstances, that was really

in the child’s best interests. The Council recommended legislative amendments to address this, and expressed its support for additional amendments to promote joint custody or joint parenting. 8.7 In a later report,19 the Council recognised the importance for children of maintaining contact with both parents after the parents’ separation and the detrimental effects resulting from the long-term or permanent absence of a parent from their lives. It was found that, in practice, contact between access parents and their children often diminished over time, and that the division of post-separation parental roles into custody versus access reinforced the win/lose attitude and discouraged ongoing parental responsibility. Cooperative parenting after separation was strongly endorsed, and the Council concluded that this objective would be enhanced by the use of terminology that discouraged ideas of ownership of children. There were a number of other significant reports,20 and there was consideration of whether a model similar to that in the Children Act 1989 (UK) should be adopted. 8.8 Against this background, the government proceeded with the most substantial reforms to the FLA since its inception. The Family Law Reform Act 1995 (Cth), which came into force on 11 June 1996, introduced the concept of ‘parental responsibility’ (a term drawn from the Children Act 1989 (UK)); this replaced the concepts of guardianship, custody and access. There was a new focus on ‘parenting plans’ for parents who could agree on matters. Where parties did not agree, courts could make ‘parenting orders’ that covered ‘residence’ (ie where the child was to live) and ‘contact’ between the child and the other parent or other persons. Parenting orders could also deal with any other aspect of parental [page 438] responsibility not covered by any residence or contact orders, and

such orders were badged ‘specific issues orders’. While the paramountcy principle remained, the term ‘best interests’ replaced ‘welfare’. 8.9 The Family Law Reform Act also introduced s 60B, a statement of the objects of Pt VII and the principles underlying those objects. A number of key themes were seen to arise from s 60B (most particularly the underlying principles), which were further developed in the substantive provisions of the new Pt VII of the FLA.21 They include: the shift from parental rights to parental responsibility; recognition of rights on the part of children — the right to know and be cared for by both parents and the right of contact on a regular basis with both parents; and the model of joint parenting, irrespective of the breakdown, or even non-existence, of the parents’ relationship. Linked with the preceding theme was the encouragement of agreement between the parents with regard to parenting arrangements based on an ideology of family autonomy; that is, that the family is usually best able to determine and promote children’s interests. 8.10 However, the 1996 reforms did not see the dramatic shift in family law decision-making that was desired by some and complaints continued. For example, parenting orders, though named differently, still very much resembled, in form, the types of orders that were made before the reforms, though it was more common to see mid-week contact. Many were calling for a shift towards more shared parenting orders and there was sustained, and very vocal, criticism of parenting laws (and child support). Indeed, family law (including child support) is now often said to be the matter raised the most by the public with their local Member of Parliament. In response to this pressure, the Federal Government of the day instituted a review with the specific goal of considering whether, in parenting disputes, the starting position ought to be a presumption of joint physical custody; that is, equal shared care. The Committee set up to consider the matter rejected this proposition (in the 2003 Every Picture report),22

recommending instead a rebuttable presumption ‘in favour of equal shared parental responsibility, as the first tier in postseparation decision making’ (Recommendation 1), effectively meaning joint guardianship. Such a presumption was, however, recognised to be inappropriate where there was ‘entrenched conflict, family violence, substance abuse, or established child abuse, including sexual abuse’ (Recommendation 2). Another significant recommendation (Recommendation 12) was that the government establish a new specialist federal tribunal to determine parenting matters, which would have social scientists as well as legal professionals on the decision-making panel. [page 439] The government signalled its intention to implement most of the recommendations of the Committee, noting this would mean parents would share key decisions about their children’s lives, regardless of the amount of time spent with each parent. The Prime Minister also indicated that courts would generally be required to consider equal parenting time even if this was not sought by the parents,23 though this was not one of the Every Picture recommendations. However, the (perhaps rather expensive) idea of a new tribunal was not embraced by the Federal Government. 8.11 A raft of enormously complex changes were proposed, and submissions critical of some of the proposed changes were received. At the two extremes were submissions to the effect that the changes did not go far enough in promoting shared care, and submissions which argued that the pro-contact flavour of the changes would further endanger victims of family violence. Nonetheless, the Family Law Amendment (Shared Parental Responsibility) Act was passed and took effect on 1 July 2006. 8.12

The detail of the key changes effected by this Act will be

clear from the text that follows in this and the next chapter and it would be repetitive to set out in detail even the major changes here, as they are considerable. However, a few general comments can be made. 1.

2.

3.

First, not unlike the 1996 reforms, while terminology has changed again (the labels of ‘residence’, ‘contact’ and ‘specific issues’ orders were abandoned), many of the fundamentals remain the same. Most notably, the child’s best interests are still the paramount consideration when making any parenting order: s 60CA. Second, in spite of the discussions leading up to these changes and public misconceptions on the issue, there is no presumption in favour of equal shared physical care of children; however, there is now a presumption in favour of joint ‘guardianship’ (this is called ‘equal shared parental responsibility’). Third, when exercising their discretion in making parenting orders, decision-makers must generally now follow a highly prescribed path. Perhaps most importantly, this includes a requirement that where there is a joint ‘guardianship’ order, the decision-maker must essentially work backwards from equal shared physical care in looking at parenting proposals; and the division of the best interests checklist (now contained in s 60CC(2) and (3)) into two tiers. The best interests checklist has been divided into ‘primary’ considerations (the promotion of the child–parent relationship and protection of the child from violence) and ‘additional considerations’ (all the remaining matters from the checklist). [page 440]

4.

Fourth, the intended outcome of these changes was that decision-makers would move away from what was seen as the

5.

6.

standard pattern of parenting orders (every second weekend and half the school holidays). Fifth, the emphasis on non-judicial resolution of disputes has been intensified, both with the introduction of compulsory pre-action procedures (discussed at 2.25ff) and the creation of Family Relationship Centres to provide free family dispute resolution for couples: see Chapter 2. Although these Centres do not actually feature in Pt VII, they were an integral part of the overall reform package. This goal of moving away from the resolution of disputes by litigation was further reinforced with the attempted reinvigoration of parenting agreements, which to this point have not been used greatly: see 8.40–8.41. Finally, in line with the ongoing tradition of trying to tailor service delivery to the particular needs of family law litigants, provisions were introduced to make trials ‘less adversarial’: see 8.69ff.

8.13 At the time of the 2006 reforms, concern was expressed that some of the particular provisions, and the generally increased emphasis on shared parenting, could compromise the protection of children from violence.24 In response to data confirming those fears, the FLA was amended in 2012 with a view to strengthening the Act’s focus on protection of family members from harm. We discuss family violence as a separate topic in Chapter 3, but as we outlined in Chapter 1, family violence is of broad general relevance to family law. In the next chapter, as part of the discussion of how the court exercises its discretion, we consider in detail the key changes made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) in context. At this point, it is important to note the problems identified with the 2006 version of Pt VII and the major changes that have been made as a result. 8.14 There has been considerable research undertaken to evaluate the impact of the 2006 reforms: see further, Chapter 3.

The findings have suggested that some provisions may not be operating in a way that maximises the best interests of children, and in particular that the increased emphasis on shared parenting might be undermining the protection of children from violence.25 Specifically, the research available prior to the 2012 reforms indicates that: Cases which come to court commonly include allegations of violence. Many of these families use [family dispute resolution] but often victims of violence do not disclose violence; if they do, they are very often not

[page 441] screened out, and these families are just as likely to end up with shared care arrangements as families who disclose no violence concerns. Professionals working in the system are sometimes confused as to whether the presumption of [equal shared parental responsibility] applies when there are grounds to believe violence is an issue. Professionals in the family law system need better training in relation to family violence. People working in the family law system consider it is better at delivering shared care than protection from violence.26

8.15 There were a number of provisions identified by the research as contributing to the problems that were the subject of reform in 2012:27 The 2006 reforms introduced two primary considerations: one that promoted shared parenting and another that promoted protection of children from violence. However, there was no legislative guidance as to which prevailed when they were in conflict. This has been remedied by the introduction of a provision to ensure that protection from violence will be given greater weight in that situation (s 60CC(2A)): see 9.28. A ‘friendly parent’ provision was included in the 2006 version of the list of mandatory additional considerations relevant to a child’s best interests; this required the court to consider the

extent to which a parent facilitated contact with the other parent. This provision had the potential both to discourage true claims of violence and to encourage decision-makers to place greater weight on contact than protection from violence, and so this has been removed. Another additional consideration altered in the 2006 reforms was that requiring consideration of family violence orders — only final and contested orders could be taken into account. The 2012 amendments have ensured that the court can take into account any inferences that can be drawn from past or present family violence orders: see 9.30. The 2006 introduction of a mandatory costs order for false allegations — aimed squarely at false allegations of family violence — also discouraged victims of violence from bringing forward their stories, and has therefore been removed. The 2012 reforms are not of the scale of the two waves preceding them. However, they are significant as they wind back some of the 2006 reforms in important ways and provide a better balance between the sometimes competing goals of shared parenting and protection of children. As we shall see in the next chapter, the research undertaken so far on the impact of shared parenting on children suggests further reforms may yet be appropriate. [page 442]

Scope of operation of Pt VII of the FLA 8.16 As a result of the referral of powers by all states (with the exception of Western Australia: see 4.89–4.92), an expansive version of the FLA applies to all children in both territories and all but one state: see Subdiv F. In Western Australia, a restricted

version of the Act confined to ‘children of the marriage’ (defined in s 60F) applies.28 Pursuant to s 69ZJ of the FLA, the Family Court has extended jurisdiction over all children in Western Australia in circumstances where parties to the dispute are resident in different states or in a different state or territory.29 The states and territories excluded their jurisdiction in the areas of adoption and child welfare from the reference of power to the Commonwealth. It is clear from the terms of s 69ZK that a court cannot make an order in respect of a child in the care of the state under child welfare laws (unless that order is expressed to come into effect when the child ceases to be in state care; see also s 69ZK(1)(b)).30

Key features of Pt VII 8.17 An important feature of Pt VII is s 60B. Section 60B(1) originally stated that the object of this Part was to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. This was expanded in 2006 and now includes ensuring that ‘the best interests of the child’ are met by: (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to or exposed to, abuse, neglect or family violence; …31

There is a subtle, but not insignificant, change in the way these aspirations have been framed since 2006. Before, the section spoke of ensuring that children [page 443]

receive adequate parenting and parents meet their responsibilities, with no particular model prescribed. The current section essentially prescribes a model: it says that Pt VII is aiming to ensure that the best interests of a child are met by having maximum possible involvement with both parents, protecting children from violence, and so on. The clear message (and this is reflected in other sections discussed later) is that, while shared care is not presumptive, the underlying philosophy of the Part is that the best interests of a child are advanced by the child seeing as much as possible of both parents. 8.18 Section 60B(2) states that the principles underlying these objects, except when it is or would be contrary to a child’s best interests, are that: (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and (d) parents should agree about the future parenting of their children; and (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Paragraph 60B(2)(e) is strengthened by s 60B(3), which explains in more detail what specific rights are included in a ‘right to enjoy’ Aboriginal or Torres Strait Islander culture. The specific reference to grandparents in para 60B(2)(b) is consistent with a clear intent to underscore the value placed on children spending time with their wider family. The genesis of s 60B is seen in the United Nations Convention on the Rights of the Child 198932 and, as outlined above at 8.4, this is reinforced by the inclusion of an additional object in 2012, ‘to give effect to the Convention on the Rights of the Child’: s 60B(4).

Parental responsibility 8.19 ‘Parental responsibility’ is defined in s 61B as meaning, ‘in relation to a child, all the duties, powers and responsibilities and authority which, by law, parents have in relation to children’. The definition in s 61B is, in a sense, a ‘non-definition’ as there is no statement of the specific duties and powers that parents have in respect of their children — it merely refers to the general law (ie common law and statute law) to reveal the content of parental responsibility. [page 444]

Content of parental responsibility 8.20 The Full Court has acknowledged that there is little Australian statutory guidance as to the content of the concept of parental responsibility.33 Some insight into the meaning of ‘parental responsibility’ may be gleaned from other sources. In Scotland, for example, the legislature saw fit to provide a statement of parental responsibility in the Children (Scotland) Act 1995 (UK). In relation to responsibilities, that Act refers to safeguarding and promoting the child’s health, development and welfare; providing age-appropriate direction and guidance; and, where the child does not live with one parent, maintaining a relationship and regular contact with the child. However, this is expressly subject to this being practicable and in the child’s best interests. The statement concerning parental rights is couched in terms of the rights necessary to fulfil the parents’ responsibilities.34 Drawing from this, from commentary on the UK legislation and from judicial statements from the UK dealing generally with the issue of parental rights and responsibilities,35 the notion of parental responsibility clearly covers a wide range of

matters including the obligation to have regular contact with the child. 8.21 In view of the nature of the definition of ‘parental responsibility’ in s 61B, an understanding of the former concepts of custody and guardianship under the FLA is still of assistance. Pursuant to the definitions in the former s 63E, a person having custody had responsibility for day-to-day decisions in respect of the child, whereas long-term decisions — such as schooling or religion — were to be made by the child’s guardian/s. The newer concept of parental responsibility encompasses decisions relating to both the long-term and the day-to-day care, welfare and development of the child. 8.22 Unlike the Children (Scotland) Act, the FLA makes no reference to parental ‘rights’. This represents a departure from the United Nations Convention on the Rights of the Child which, notwithstanding its focus on the rights of the child, does nevertheless refer in places to parental rights, for example, Art 5. The approach taken under the FLA is generally seen as a reflection of the commitment to counter the notion of proprietary rights in respect of children, which had been pervasive. The definition of parental responsibility in s 61B includes reference to the ‘powers’ and ‘authority’ that parents have in respect of children; however, this is not the same as the recognition of parental rights. This was implicitly reinforced by the Full Court in Valentine & Lacerra36 in rejecting a submission to the effect that the corollary of having parental responsibility is that a parent has ‘commensurate [page 445] powers and authority and are entitled to parent as they see fit, subject to the best interests of the child’.37 8.23

As indicated above, the old concept of guardianship will

often now be encompassed by an order for ‘equal shared parental responsibility’ or, where responsibility is not to be shared, orders allocating responsibility for ‘major long-term issues’ in relation to a child. Section 4(1) provides a non-exhaustive definition of ‘major long term-issues’ (see 8.45) and, in doing so, the legislation identifies some aspects of parental responsibility.38 As Boland J has noted, ‘the legislature has not attempted to constrain the concept of parental responsibility by strictly defining the limits of its ambit’.39 Generally, the lack of precision and the broad scope of this concept have not presented any particular problems for the court.

Who has parental responsibility? 8.24 The next matter that needs to be addressed is: who has parental responsibility? Under s 61C, each of the parents of a child who is under 18 has parental responsibility for the child,40 and this is the case despite any changes in the nature of the relationship of the child’s parents. The section specifically states that this ‘is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying’.41 Section 61C is one of the main provisions to give effect to the model of joint parenting referred to earlier (see 8.9), irrespective of marital status of the parents or the nature of their current relationship.

Joint or several responsibility? 8.25 One issue that could have practical implications concerns the nature of the grant of parental responsibility under the FLA and, in particular, whether it is exercisable jointly or severally where it is held jointly. The answer is potentially different for parental responsibility for major long-term issues (which is exercised by parents who were previously described as having ‘guardianship’) and responsibility for day-to-day decisions (which

is exercised by parents who were previously described as having ‘custody/residence’ and ‘access/contact’). Section 61C refers to all parental responsibility. The reference in that section to ‘each of the parents’ having parental responsibility would tend to suggest that the parties’ responsibility can be exercised severally — that is, independently of the other parent — in the absence of a court order to the contrary: see s 61C(3). [page 446] However, other provisions could be used to support the view that parental responsibilities under the Act are shared responsibilities (see s 60B) and are to be exercised by the parents jointly. If parental responsibility is exercisable severally — that is, independently of the other parent — it would give each parent a much greater degree of latitude in decision-making in respect of the child, subject only to orders of the court. If, on the other hand, the legislation requires parental responsibility to be exercised jointly, consultation between parents will be required in all cases and the jurisdiction of the court may be invoked more often and at an earlier stage to resolve parental disagreements.42 8.26 Commenting on the position before the 2006 reforms, the Full Court in B & B: Family Law Reform Act 199543 said: [W]e think it unlikely that the Parliament intended that separated parents could only exercise all or any of their powers or discharge all or any of their parenting responsibilities jointly in relation to all matters. This is never the case when parents are living together in relation to day to day matters, and the impracticability of such a requirement when they are living separately only has to be stated to be appreciated. As a matter of practical necessity either the resident parent or the contact parent will have to make individual decisions about such matters when they have the sole physical care of the children. On the other hand, consultation should obviously occur between the parents in relation to major issues affecting the children such as major surgery, place of education, religion and the like. We believe that this accords with the intention of the legislation.44

What was not resolved by this statement, however, was whether a parent could enforce the duty to consult that arose from this interpretation.45 Dewar and Parker characterised the form of decision-making envisaged under the Act as it stood in 1996 (in the absence of any order to the contrary) as a ‘weak consultative’ model, and noted the potential for uncertainty and increased conflict that might be caused by a system that ‘promises one thing but actually delivers another’.46 Leaving aside for the moment the question of consultation, the Full Court in B & B did not make a definitive statement that parental responsibility for major long-term issues could only be exercised jointly. The later decision of the Full [page 447] Court in Goode v Goode,47 which was addressing the effect of the 2006 amendments, said that in the absence of a court order the effect of s 61C remains that parents both have full parental responsibility, and this can be exercised either jointly or independently. Thus, it seems accepted now that the effect of s 61C is to bestow joint and several decision-making power.48 This can be changed by court order, but any such order would need to be specific as to its effect. The 2006 amendments did not alter s 61C, but new provisions were enacted in relation to the issue of consultation and the effect of certain orders on the power to make unilateral decisions about major long-term issues: ss 65DAC and 65DAE. The first of these sections provides that if, under a parenting order, two or more persons share parental responsibility in respect of major long-term issues (defined in s 4(1)), the order is taken to require that the parties must consult each other and make a genuine effort to come to a joint decision: s 65DAC(1) and (3). The section also says the parenting order ‘is taken to require the decision to be made jointly by those persons’: s 65DAC(2) (emphasis added). What is not

explained is what happens if the parties cannot agree on a decision — say, for example, in relation to schooling. The terms of s 65DAC(2) do not seem to allow one parent to make the decision, even where agreement cannot be reached after good faith consultation. In Pavli & Beffa,49 Watts J confirmed this approach by holding that the court could not order shared parental responsibility in respect of a major long-term issue and then give the ultimate power to take the decision to one parent.50 In other words, either responsibility is shared and the decision must be taken jointly, or it is not shared responsibility and the order should not be framed in that way. In practice, no doubt, rather than going to court to resolve the issue, one parent may well just make the decision and wait to see whether it is challenged in court by the other parent. However, it must be noted that where a parent breaches a parenting order (and failure to consult or taking the decision unilaterally would both be breaches), specific enforcement provisions apply: see 8.126ff. As noted, s 65DAC only applies where there is an order for joint parental responsibility for major long-term issues; where there is no order, as pointed out in Goode v Goode, the matter is still governed by s 61C (see 8.25). 8.27 What about parental responsibility for day-to-day matters — is this joint or several? We have discussed in detail in previous editions of this book why there is some ambiguity surrounding this question under the legislation as currently drafted.51 While nothing has changed in that regard, the reality is that in practical terms it is accepted that the responsibility for day-to-day decisionmaking rests [page 448] solely with the person who has care of the child at any given time — in particular, see the note to s 65DAC(2). This is reflected in the

Full Court’s decision in B & B: Family Law Reform Act 199552 (see 8.26). To avoid any doubt over who has the right to make day-today decisions, a parenting order dealing with that matter ought to be included as a matter of course. Certainly, there is no reason not to include such orders, and they make the situation clear for the parties who have to implement those orders, rather than expecting parents to understand the technical nuances of what is now very complicated legislation.

Scope of parental responsibility 8.28 What then is the scope of parental responsibility? How long does it last and in what circumstances does it come to an end? It is clear from the terms of s 61C(1) that, in general, parental responsibility ends when a child turns 18. However, the responsibility to maintain a child financially is not limited to minor children (see s 66C), though a court can only make a maintenance order for a child over 18 (known as ‘adult child maintenance’) in limited circumstances (see s 66L, discussed further at 11.18ff). Parental responsibility also ends upon the adoption of the child. Parental responsibility can be limited or removed by an express order of a court — whether made in contested proceedings or by consent — and can be affected by a parenting agreement reached between the parties. Although parenting plans can no longer be registered with the court (see 8.40ff), s 64D makes parenting orders subject to later parenting plans, unless the order contains an express provision to the contrary (such a provision only being available in exceptional circumstances). 8.29 Parental responsibility for a child under 18 can also be limited in the case of mature minors. According to early case law, parental rights were fully exercisable until the child reached the age of majority.53 However, this interpretation was strongly rejected by Lord Denning in Hewer v Bryant,54 where he described custody as a dwindling right that courts will hesitate to enforce

against the wishes of the child, the older he or she is. It starts with a right of control and ends with little more than advice. 8.30 The modern view, which stems from the landmark House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority,55 is that parental decision-making in respect of children is not absolute, but only exists in so far as it is necessary for the benefit and protection of the child, and must be exercised in a manner consistent with the child’s welfare. As children become more mature and develop the capacity to make their own decisions, the scope of parental authority and control diminishes accordingly. The specific matter at issue in the Gillick [page 449] case concerned the capacity of a minor to consent to contraceptive treatment; however, the decision is widely believed to have a much broader reach, irreparably denting the doctrine of parental rights.56 8.31 The House of Lords decision in Gillick has been approved by the High Court of Australia as a correct statement of the common law on the nature of parental powers, which diminish as the individual child’s capacities and maturity grow: Secretary, Department of Health and Community Services v JWB & SMB (often known as Re Marion).57 Thus, in spite of the terms of the FLA, which (at the time) referred to parental rights of guardianship and custody continuing until the child reached 18 years of age,58 the High Court was of the view that parental authority does, both in fact and law, diminish as the child gains sufficient maturity and understanding to make his or her own decisions. The issues were clearly outlined by Deane J. After rejecting the ‘extreme view that parental authority persists unabated until a child attains full adulthood’, his Honour commented:

The most important influence in making it inevitable that the extreme view of parental authority would yield to the common law’s traditional recognition of the gradual development of the legal capacity of a young person to decide things for herself or himself has, however, undoubtedly been the social fact of the increasing independence of the young. In times when it is not unusual for fifteen and sixteenyear-olds to be supporting themselves as members of the workforce, to insist upon complete parental authority up until the age of eighteen would be to propagate social anachronism as legal principle … … The effect of the foregoing is that the extent of the legal capacity of a young person to make decisions for herself or himself is not susceptible of precise abstract definition. Pending the attainment of full adulthood, legal capacity varies according to the gravity of the particular matter and the maturity and understanding of the particular young person. Conversely, the authority of parents with respect to a young person of less than eighteen years is limited, controlled and varying.59

8.32 After the Gillick case, there were a number of decisions of the UK Court of Appeal that sought to limit the effect of that decision, at least in the context of medical treatment. In Re R (A Minor),60 Lord Donaldson put forward the view that the presence of ‘Gillick-competence’ in a child does not preclude the parents’ [page 450] right to consent to (as opposed to veto) treatment on behalf of the child. This view, which was later endorsed by the Court of Appeal in Re W (A minor) (medical treatment),61 was justified by Lord Donaldson on the grounds that doctors would otherwise be faced with an intolerable dilemma when dealing with maturing minors, having no way of establishing in whom the right to consent to treatment resided at that time. Whatever its status in the UK, the decision in Re R (A Minor) does not represent the law in Australia. In Re Marion62 (see 8.31), the case was relegated to a footnote. McHugh J was more forthright, holding that in so far as this decision was contrary to the proposition that parental authority is at an end when the child gains sufficient intellectual and emotional maturity to make an informed decision on the matter

in question, it is inconsistent with the Gillick case which has been approved by the High Court.63 8.33 As was noted in B (Infants) & B (Intervener) and Minister for Immigration and Multicultural and Indigenous Affairs64 (a case about the detention of immigrant minors), Gillick-like tests of competency for minors exist in other areas of law. As to what factors are relevant to that competency, Nicholson CJ and O’Ryan J noted that a child’s competency depends on the circumstances and may involve a much broader consideration than just the child’s age.65 The question of the scope of parental authority arose in Gillick because the parent and child were in dispute over whether the child (as opposed to the parent) had capacity to consent to a medical treatment. In some instances, however, a child will quite clearly not be Gillick-competent to make a medical decision. In normal circumstances, a parent has the authority to consent on the child’s behalf in such a situation. Re Marion66 dealt with the question of the sterilisation of an intellectually disabled girl in circumstances where the procedure was not necessary to treat any underlying medical condition; that is, it was not ‘therapeutic’. There was no question of Gillickcompetence of the child. It was decided in Re Marion that the nature of this particular procedure was such that court oversight was required and the matter did not fall within parental responsibility; as a result, where a child is undergoing a ‘special medical procedure’ — harvesting an organ from a healthy child for the benefit of a sibling is another example — court approval must be obtained where the child is not Gillick-competent. The scope of this exception and the rationale for this falling outside of parental responsibility is discussed in detail at 8.116ff, which considers s 67ZC, the section that provides the power for the Family Court to make such decisions. [page 451]

So, if the medical procedure sought is not ‘special’, but there is a dispute as to whether a child is Gillick-competent (such as in Gillick itself), then a court can resolve the matter. What then is the situation regarding decision-making and the competency of children where the medical procedure is special? These issues were considered in the 2013 Full Court decision of Re Jamie.67 In that case, the court was asked to determine whether sex-reassignment treatment for children with gender identity dysphoria (GID)68 (see further, 8.124) was a ‘special medical procedure’. It was held that Stage 1 of the treatment for this condition (which is generally undertaken on younger children: see 8.124) was not a special medical procedure, and so, ‘absent controversy’, was within parental responsibility where a child was not Gillick-competent (which would normally be the case). This was said to be because Stage 1 treatment is reversible, is not attended by a grave risk if a wrong decision is made and is for the purpose of treating a medical condition (ie therapeutic).69 Bryant CJ stated, however, that in relation to Stage 2 treatment, the question of the child’s capacity to consent became a live issue. It appears that the appellants argued that a court should only become involved in the question of competency where there was an issue of controversy giving rise to doubt as to the question of competency of the child. Otherwise, in their view the clinician would determine the child’s competency, and to the extent the child lacked competency, parental authority would suffice. The Australian Human Rights Commission argued that, whatever the situation, only the court could determine the Gillick-competency of a child for Stage 2 treatment of this condition. Bryant CJ agreed with the Commission, because of ‘the nature of the treatment’.70 In explaining that conclusion, her Honour relied on the reasoning in Re Marion, merely saying that: In Marion’s case, the majority held that court authorisation was required first because of the significant risk of making the wrong decision as to a child’s capacity

to consent, and secondly because the consequences of a wrong decision are particularly grave.

The decision in Re Jamie is somewhat perplexing. The above extract appears to apply some of the criteria developed in Re Marion to determine if a medical procedure is special, to the separate question of who can determine a child’s competency in regard to a medical procedure (something that was not at issue in Re Marion). This was because, her Honour said, it is the nature of the treatment that led her to her decision as to who can determine competency. And yet, Bryant CJ held that Stage 1 treatment is not a special medical procedure, in part because the treatment was [page 452] therapeutic, but then entirely overlooked that consideration in discussing Stage 2 treatment; indeed, there was no detailed consideration of whether Stage 2 treatment fits all of the criteria laid down in Re Marion. Moreover, there was no discussion in Re Marion of the question of a risk of making the wrong decision as to the child’s capacity to consent; rather, the High Court talked of the significant risk of making a wrong decision about having the procedure. The risk existed in the circumstances of Re Marion because of the potential conflict of interest between the child and the parent; however, as Bryant CJ acknowledged earlier in her decision in Re Jamie, that potential for conflict was unlikely in the case of treatment for GID. Arguably, what the Full Court has done here is to create a new class of procedures where court determination of Gillickcompetency is required. It is difficult to predict, however, the scope of this class of procedures; that is, what medical procedures are captured? It cannot be the same as for special medical procedures under Re Marion, because Re Marion is confined to nontherapeutic treatment (ie where the treatment is not required due to underlying bodily malfunction or disease), whereas treatment

for GID is therapeutic. However, it may be that special medical procedures form a sub-set of this new, broader class. Whatever the precise legal position, the significance of the decision in Re Jamie is that it impacts on parental authority to make decisions on behalf of their minor children and the Family Court is now seeing regular applications to determine the Gillickcompetency of children wishing to undergo Stage 2 treatment for GID. It is extremely unfortunate that parents and clinicians will be put to the trouble of court proceedings and it is difficult to understand the rationale of this decision, given the limited and somewhat confusing explanation provided for it. Where therapeutic treatment is being offered for a medical condition, and the child, parents and doctors are all in favour of proceeding, it is hard to understand why a court ought to be involved, just because of the nature of the procedure. There is always the chance in such a situation that the ultimate decision will turn out to be ‘the wrong one’,71 and that the consequences of that will be grave for the child, but it is hard to see how a court is in any better position to take the decision than those directly involved. Rather, this decision suggests the court had some particular, and unarticulated, discomfort with the treatment being undertaken for GID. 8.34 There is a further difficult aspect to the decision in Re Jamie. It has long been said that the right of a mature minor to make his or her own decisions is subject to the best interests principle. In their joint judgment in Harrison & Woollard,72 Fogarty and Kay JJ — after referring to the Gillick-competent test and the decision in Re W (A minor) (medical treatment)73 (see 8.32) (a case in which the court overrode the refusal by a minor of treatment for anorexia, where that was necessary in the [page 453] minor’s interests) — continued: ‘where a court is concerned with

the welfare of a child, no question of “self-determination” by a mature child can arise.’74 This was not to suggest that a child’s wishes would necessarily be overruled, but rather to explain that, in some circumstances, determination of the child’s best interests requires the court to reject the child’s wishes. However, in Re Jamie Bryant CJ had the following to say: In my view, it would be contrary to the Convention on the Rights of the Child, and to the autonomous decision-making to which a Gillick competent child is entitled, to hold that there is a particular class of treatment, namely stage two treatment for childhood gender identity disorder, that disentitles autonomous decision-making by the child, whereas no other medical procedure does. The High Court in Marion’s case, adopting the formulation in Gillick, held at 237 that a child is capable of giving informed consent when he or she ‘achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. I see no basis for reading this down because the treatment is for childhood gender identity disorder. Indeed, one might think that, of all the medical treatments that might arise, treatment for something as personal and essential as the perception of one’s gender and sexuality would be the very exemplar of when the rights of the Gillick-competent child should be given full effect.75

It is difficult to reconcile this with the conclusion of Fogarty and Kay JJ in Harrison & Woollard. In Re Jamie, the Full Court appeared to rely on s 67ZC as the jurisdictional basis of its decision in relation to competency.76 If it was s 67ZC, then it is clear that the best interests of the child were the paramount consideration (see 8.116ff). The implications of this for the autonomy of mature minor decision-making were not considered. Parents have authority to make decisions on behalf of their children until such time as either the child reaches legal majority, or the child becomes competent to make the decision on their own behalf. Because parents (and others) sometimes do not agree on matters relating to the child, the Family Court has been given jurisdiction to make the decision on their behalf. In making that decision, the best interests of the child are the paramount consideration. As Bryant CJ reminds us, the question of court involvement in decision-making on behalf of a child once it reaches Gillickcompetency is problematic. This is an interesting question worthy of further consideration by the court. Indeed, it gives pause to

consider the way the Family Court deals more generally with parenting applications where a mature minor expresses a decided view on the matter before the court (see further, 9.43). [page 454]

Reallocation of parental responsibility 8.35 Section 65D(1) empowers the court to make such parenting orders as it thinks proper, and such orders may have the effect of reallocating parental responsibility as between the parents, or possibly in favour of another person/s. This power is subject to s 61DA (the presumption in favour of equal shared parental responsibility, or joint ‘guardianship’) and s 65DAB (the obligation to consider parenting plans when making orders). However, the broad discretionary power granted by s 65D(1) has always been subject to any specific obligations placed on decision-makers under Pt VII; for example, the obligation to make the decision that is in the child’s best interests and the obligation in reaching that decision to take account of mandatory considerations. In essence, s 65D(1) permits the court a very broad discretion to make the orders it thinks proper, taking account of the various other provisions set out in Pt VII. 8.36 One question that has arisen for consideration is: in what circumstances should a court be prepared to intervene with the legislative allocation of parental responsibility (which lies equally with both parents) and make orders reallocating such responsibility (in some cases to non-parents)? The reason that this arises as an issue stems from the background to the legislation. Reforms introduced under the Family Law Reform Act 1995 (Cth) were, to a large extent, based on the Children Act 1989 (UK). One aspect of the UK legislation that has not been followed in Australia is the ‘no-order principle’; that is, the principle that the court is

expressly discouraged from making an order unless the court decides that making an order would be better for the child than no order at all. Questions, nevertheless, were raised as to whether the 1996 reforms heralded a new policy of non-intervention. 8.37 Despite the absence of a ‘no-order principle’, after the 1996 reforms the Full Court supported restraint in the making of orders that unnecessarily interfere with parental responsibility: [I]n our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made. … [I]t is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.77

[page 455] 8.38 Notably, this statement is directed at the court interfering with ‘particular aspects’ of parental responsibility. In other words, the Full Court is advising against micro-management of parenting and using court orders to resolve minor day-to-day matters of parenting. 8.39 It might be said that the introduction of a presumption of equal shared parental responsibility, effected by s 61DA, strengthens the notion that shared parental responsibility should not be interfered with lightly by court order; that is, it should generally be left as joint. However, practically, there is now a very good reason why court orders may be preferred over no court orders. The power to decide major long-term issues is usually shared. If there is no court order about this matter, the effect of s

61C is that these decisions can be made independently: see 8.25–8.27. Conversely, if an order for equal shared parental responsibility in relation to major long-term issues is made, then the effect is that the parties can only exercise this power jointly and they must consult about the issue: s 65DAC. As discussed at 8.25, on its face the effect of this section is that a decision cannot be taken without the consent of the other parent. This could be significant for many parents as it would cover things like schooling choices, religion and major medical decisions.

Parenting agreements 8.40 A central theme underlying Pt VII of the FLA is that parents are encouraged to reach agreement with regard to parenting arrangements: see s 60B(2)(d). This principle is reinforced by s 63B, which states: The parents of a child are encouraged: (a) to agree about matters concerning the child; and (b) to take responsibility for their parenting arrangements and for resolving parental conflict; and (c) to use the legal system as a last resort rather than a first resort; and (d) to minimise the possibility of present and future conflict by using or reaching an agreement; and (e) in reaching their agreement, to regard the best interests of the child as the paramount consideration.

The FLA has historically favoured the recognition of parenting agreements between parties. Before 1996, these were known as ‘child agreements’; the 1996 amendments replaced these with ‘parenting plans’. Superficially, at least, there was some similarity between the two forms of agreement, as the FLA provided a mechanism by which such agreements could be registered with the court, thereby acquiring legal force as if they were an order of the court.

Parenting plans were intended to provide a simple, informal process for formalising agreements. The model that eventuated was quite different and they have never been widely used. The legislative scheme adopted made them a more [page 456] expensive and time-consuming option than obtaining consent court orders. They were also difficult to vary. In 2004, the registration process for parenting plans was abandoned. Parents can now enter into a written parenting plan that deals with any aspect of parental responsibility (s 63C), though to deal with child support the document must be a combined parenting plan and child support agreement (ss 63C and 63CAA). Parenting plans may be varied or revoked by later written agreement of the parents (s 63D). As they cannot now be registered, the provisions of parenting plans do not have the force of a court order, and so cannot be enforced as such. Section 63DA imposes an obligation on lawyers, Family Dispute Resolution practitioners (see 2.11), family consultants (see 2.43) and counsellors to advise parents that they could 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 availability of programs designed to help parents if they experience compliance difficulties. Registered parenting plans entered into before 14 January 2004 continue to have effect;78 however, they cannot be varied.79 Parties may revoke the plan by consent, but to do so they must register a written revocation agreement with the court.80 8.41 Section 64D has the effect of making parenting orders subject to the terms of any later parenting plan, unless the parenting order specifically provides this is not to be the case.

However, there must be ‘exceptional circumstances’ for a court to make that provision. Section 64D(3) defines ‘exceptional circumstances’ to include those that give rise to a need to protect a child from harm and ‘the existence of substantial evidence that one of the child’s parents is likely to seek to use coercion or duress to gain the agreement of the other parent’. Thus, parenting plans that are inconsistent with prior court orders will effectively revoke those orders, but the new agreement in the parenting plan will be unenforceable.81 Parents who find themselves in disagreement after making a parenting plan can still litigate. Under s 65DAB a court, when making parenting orders, must have regard to the most recent parenting plan, if doing so would be in the best interests of the child. Given that parenting plans can be entered into without legal advice, and that they will override prior inconsistent orders, the government agreed to amend the relevant Bill to the effect that such plans must be made free of any threat, duress or coercion: s 63C(1A). For the same reasons, the then opposition also suggested that a cooling-off period be included, but the Federal AttorneyGeneral [page 457] took the view that, as the agreements are not enforceable, that was not required. Arguably, that overlooks the serious consequences of a plan effectively discharging inconsistent orders. The environment in which court orders are made — which includes compulsory pre-filing dispute resolution and some degree of oversight of the actual orders made — may be very different to the circumstances under which a parenting agreement is struck. One concern here must be that victims of violence, who have secured court orders, may be coerced into new agreements, overriding those orders. The onus will then effectively lie on the victim to take the matter back to court to later prove coercion or threats.

There is another issue of concern in this regard. Despite the government’s aim of simplifying procedure, each round of amendments makes Pt VII more technical and difficult to interpret for a non-lawyer. This is very relevant for parenting plans, as many will be drafted by non-lawyers and they are often long and complex. As parenting plans now have the effect of overriding orders to the extent of any inconsistency, obtaining legal advice — at least as to the operation of the plan — would appear to be a wise precaution for parties.82 In the absence of such advice, there is the distinct possibility of confusion as to the application of the orders and the plan.

Institution of proceedings and procedure Who may institute proceedings? 8.42 Section 69C sets out who may institute proceedings under the FLA in relation to children. The section is in two parts. Subsection (1) sets out the provisions located elsewhere in the Act expressly dealing with who may institute particular kinds of proceedings in relation to children: s 65C (parenting orders); s 66F (child maintenance orders); s 67F (child-bearing expenses); s 67K (location orders); and s 67T (recovery orders). By virtue of s 69C(2): Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by: (a) either or both of the child’s parents; or (b) the child; or (c) a grandparent of the child; or (d) any other person concerned with the care, welfare or development of the child.

In view of the matters dealt with elsewhere by virtue of s 69C(1)

(including the all-important parenting orders under s 65C: see 8.45ff), this provision is of [page 458] limited operation, applying, for example, to proceedings for orders in relation to the welfare of a child (s 67ZC) or for orders or injunctions under s 68B. It is clear, therefore, that the category of potential applicants is broad. This may beg the question of why grandparents are specifically named. As mentioned at 8.18, the references to grandparents (which came with the 1996 and 2006 reforms) serve to emphasise the benefit to children of having contact with their wider family. Notably, grandparents are named as potential applicants for parenting orders under s 65C(ba); however, even prior to the insertion of this subsection, a grandparent could bring proceedings in respect of parenting orders under s 65C, on the basis that they were ‘concerned with the care, welfare and development of the child’.83 The specific reference to grandparents means, however, that like parents, grandparents do not have to establish that they are ‘concerned with the care, welfare or development of the child’ — it is assumed: Aldridge & Keaton.84 8.43 Any party wishing to file an application seeking an order under Pt VII in relation to a child must also file (at the same time) a certificate from a Family Dispute Resolution practitioner: s 60I(7). As the purpose of this is to encourage the non-judicial resolution of disputes, it is discussed in more detail under the topic of dispute resolution: see 2.27ff.

Required jurisdictional connection 8.44 The jurisdictional connection required for the institution of proceedings relating to children under the FLA is set out in s 69E.

The court will have jurisdiction if the child, a parent of the child,85 or a party to the proceedings is: (a) present in Australia on the relevant day; (b) an Australian citizen; or (c) ordinarily resident in Australia on the relevant day. There will also be jurisdiction where it would be in accordance with either a treaty arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings. Under s 69E(2), the term ‘relevant day’ means, in relation to proceedings: (a) if the application instituting the proceedings is filed in a court — the day on which the application is filed; or (b) in any other case — the day on which the application instituting the proceedings is made.

[page 459] As is clear from the terms of s 69E, and confirmed in JJT v CTT,86 Australian family courts have jurisdiction under Pt VII even if none of the children in question is ordinarily resident in Australia. Nor do they have to be present in Australia.87

Parenting orders 8.45 A parenting order is, in essence, an order that deals with any aspect of parental responsibility for a child. Parenting orders are addressed in Div 5 of Pt VII of the FLA88 and can deal with any of the following matters (s 64B(2)): (a) the person or persons with whom a child is to live; (b) the time a child is to spend with another person or other persons; (c) the allocation of parental responsibility for a child; (d) if 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e) the communication a child is to have with another person or other persons;89 (f) maintenance of a child; (g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of: (i) a child to whom the order relates; or (ii) the parties to the proceedings in which the order is made; (h) the process to be used for resolving disputes about the terms or operation of the order; (i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Paragraphs (c) and (i) ensure that parenting orders can cover all aspects of parental responsibility. Section 64B(3) points out, somewhat obviously, that parenting orders include orders allocating the responsibility to make ‘major long-term issues’. As we have already indicated (see 8.23), the latter phrase describes matters that were historically under the umbrella of ‘guardianship’. Section 4(1) defines ‘major long-term issues’ to include education, religious and cultural upbringing, health, the child’s name and ‘changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent’. Due to concern expressed at the breadth of this provision (raised in consultations over the Bill introducing this amendment), this definition was extended to make it clear that a parent’s decision to form a new relationship does not, on its own, [page 460] fall within the definition. However, where that would result in the child moving, then that could turn it into a major long-term issue. This provision does not effect any real legal change to the making of orders, as it was always the case that the court could make an order about such a matter. It may, however, be significant in other contexts, such as the requirement to consult: see 8.25. This issue is

discussed further in relation to relocation cases: see generally, 9.116. Section 64(4A) confirms that a parenting order can include an order requiring the parties to: … consult with a family dispute resolution practitioner to assist with: (a) resolving any dispute about the terms or operation of the order; or (b) reaching an agreement about changes to be made to the order.

The Full Court has expressed the view in Jollie & Dysart90 that a recovery order (see 8.148) is a parenting order. As the Full Court noted, this would have the absurd consequence of the s 61DA presumption of equal shared parental responsibility and other associated provisions applying to the making of a recovery order; their Honours considered this to be a legislative oversight. It is clear that s 65D(1) only permits orders directed at parents where they are ancillary to an order involving the child. For example, in L & T91 the Full Court expressed doubt that an order requiring a parent to undergo therapy could be made unless it were a condition of an order for contact or residence. In Carriel & Lendrum,92 the Full Court expressed the tentative view (no argument having been addressed to the matter) that a refusal to make a parenting order is not a parenting order. A 2012 addition to the end of s 64B(1) states that declarations or orders as to parentage (see Pt VII Div 12 Subdiv E) are not parenting orders.93 This was to clarify some confusion as to whether, in deciding whether to order parentage testing, the child’s best interests were ‘a’ consideration, or the ‘primary consideration’.94 8.46 What is the significance of deciding whether a particular court order is a ‘parenting order’? First, pursuant to s 60CA, in deciding whether to make a particular parenting order, the best interests of the child are the paramount consideration for the court. Second, breaches of ‘parenting orders’ attract the

[page 461] operation of Div 13A.95 That Division deals with the penalties for contravening orders that ‘affect’ children, which are defined in s 4(1) to include parenting orders.

Orders dealing with where a child lives 8.47 Section 64B(2)(a) says an order can deal with the individual/s with whom a child is to live (formerly known as a custody order and more recently a residence order). 8.48 As with all forms of parenting orders, such an order may be made in favour of a parent or a third party: s 64C. However, s 65G applies to consent orders where: (a) the child will live with a nonrelative (s 65G(1)); or (b) no relative will be allocated parental responsibility for the child: s 65G(1A). The definition of ‘relative of a child’ in Pt VII includes step-parents and step-siblings. If s 65G applies, before the court can make the consent order sought, it must be satisfied either that the parties have discussed the matter with a family consultant, or that there are circumstances that make it appropriate to make the order even though no such discussion has taken place: s 65G(2).96 This provision is clearly aimed at avoiding ‘de facto’ adoptions of children without some external scrutiny. An example of the application of this provision is seen in Beck v Whitby,97 where Watts J approved a consent order (on the basis that it was in the child’s interests) that effectively ‘gave’ the child in question to an unrelated couple, in accordance with a traditional Torres Strait Islander adoption practice known as ‘Kupai Omasker’.98 Equally, this section will be considered in situations where parents come to court asking for a surrogacy arrangement to be given legal recognition through consent parenting orders.99 Surrogacy is discussed further at 7.37ff.

8.49 One of the advantages of abandoning the terminology of custody/access orders and replacing them first with ‘residence’ and now ‘live with’ orders, is that it is open to a court to grant both parents ‘live with’ orders, specifying the time ratio to be allocated between them. Such an approach is consistent with the strong emphasis in the legislation on shared parental responsibilities and helps avoid the win/lose mentality associated with having one type of order being considered superior to the other. The court’s response to this matter is discussed further at 8.52. [page 462] 8.50 In Cales v Cales,100 the Full Court was asked to consider whether the court could, in effect, make an order determining the place of residence of a parent; this is discussed further in the context of relocation: see 9.116ff. As part of oral submissions on this point, the mother argued that the trial judge fell into error: … by determining the application on the basis of where the children should live, not with whom the children should live. [It was] submitted that there was no power to make an order which dictated where the children should live, but rather s 64B(2) dictated that a court could only make an order about with whom a child should live.101

Unsurprisingly, the Full Court answered this question in the affirmative and held that an order restraining the movement of a child from a particular location was within the court’s power.102

Orders dealing with children spending time, or communicating, with another person 8.51 When the terminology in the FLA changed from ‘access’ to ‘contact’ orders, it is fair to say the change was pretty much in name only. Contact orders were substantially similar to the access orders they replaced. Now, courts may make orders that children

‘spend time with’, or ‘communicate with’, other people. While the terminology is different, it is hard to see that this effects any great legal change. In other words, what were once contact (or access) orders are now cast in the new terminology. A child may be ordered to spend time with a parent or a grandparent or any other third party such as a former step-parent or other relative: see s 64C. Whereas the old term ‘contact’ (which was not defined in the Act) was considered sufficiently wide to encompass both physical contact and contact by more indirect means such as by letter, telephone or email, now those forms of contact are broken into two categories. Physical contact will be ‘spending time with’ a person and communication orders will relate to other types of contact. 8.52 Due to the philosophy underlying the changes in 1996 — including avoiding the win/lose mentality — the question quickly arose as to the use of residence–residence, as opposed to residence– contact, orders. This is not a question of when there should be equal shared physical care — clearly in such a case the orders would be framed as ‘live with’ orders for both parents. The question was when one parent had more care, how should the order for the parent with less care be styled? This was commented on by the Full Court in B & B: Family Law Reform Act 1995.103 [page 463] Agreement was expressed with the submissions of the AttorneyGeneral that it is open to the court in an appropriate case to make a residence–residence order. The Full Court commented that there are many cases where such orders are desirable, reinforcing as they do the shared parenting responsibility concept contained in the legislation. Their Honours did, however, wish to avoid residence– contact orders being seen as a second-best option. It was their view that residence–contact orders should be used in circumstances

where the contact is of relatively short duration, particularly where there is no overnight contact.104 This is particularly pertinent with the latest change in terminology and it is submitted that this case applies equally to the current provisions. Where a child is spending nights at a parent’s house, it is appropriate for the order to be framed so that the child is said to be living with the parent at that time. Where the child does not stay overnight, then ‘spending time with’ is the more appropriate form for the order.

Proceedings in respect of parenting orders 8.53 The procedure for applying for, and the making of, parenting orders (other than child maintenance orders: s 65B) is dealt with in Subdiv B of Div 6 in Pt VII. Pursuant to s 65C, a parenting order may be applied for 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 and development of the child. A parenting order in relation to a child may be made in favour of a parent of the child or some other person: s 64C. (The special conditions applicable for making a parenting order by consent that a child live with a non-relative, or where parental responsibility is not given to a relative, have been outlined above at 8.48.) The court’s power to make a parenting order is derived from s 65D which states that, in proceedings for a parenting order, the court may, subject to ss 61DA and 65DAB and Div 6, make such parenting order as it thinks proper: s 65D(1). In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration: s 60CA. The best interests principle is dealt with further below. In addition to the pre-action procedures required before an application for parenting orders can be filed (see 2.25ff), counselling is usually required before a court can make a parenting order in defended proceedings: s 65F(2).105 A parenting order cannot be made in relation to a child who is

18 years or over, is or has been married, or is in a de facto relationship: s 65H(1). Any existing parenting order in relation to a child stops being in force if the child turns 18, marries or enters a de facto relationship: s 65H(2). ‘De facto relationship’ is defined in s 4AA, and s 65H(3) provides the court with the power to make a declaration as to whether the child is in a de facto relationship. [page 464] 8.54 There is some scope for the court to take account of the fact that parenting is ongoing and to recognise that simply making an order will not necessarily resolve parenting difficulties. The court therefore has a discretion to make a supervision order. This order requires compliance with the parenting order to be supervised by a family consultant, and/or requires a consultant to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the order: s 65L(1). In determining whether to make an order under subs (1), the court must regard the best interests of the child as the paramount consideration: s 65L(2).106 However, it would seem that, at least in the case of orders for ongoing supervision, the court is not insensitive to the considerable burden such orders place on the court’s already limited resources.107 Further, under s 65LA, in proceedings for a parenting order the court may order a party to attend a post-separation parenting program.108

Exercise of the court’s jurisdiction: the best interests of the child as the paramount consideration 8.55

Like many jurisdictions around the world, Australia

embraces what has become known as ‘the paramountcy principle’. Broadly speaking, this means that when making a decision concerning a child, the child’s best interests will be the paramount consideration.109 This principle constitutes the legislative basis for making decisions in respect of children under a wide range of statutes in Australia; for example, in adoption, and care and protection legislation. It is generally accepted that this approach reflects the influence of the United Nations Convention on the Rights of the Child 1989, in particular Art 3.1. This Article, however, states the principle somewhat differently: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

We discuss elsewhere the particular significance of the FLA making children’s interests ‘the paramount’, as opposed to ‘a primary’, consideration: see the discussion at 9.116ff. 8.56 Under s 60CA, the court must regard the best interests of the child as the paramount consideration in making a parenting order, and this paramountcy [page 465] principle also applies in a number of other specified contexts under the legislation: see further, 8.64. The term ‘interests’ is defined in this context in s 4(1) as including matters related to the care, welfare or development of the child. Thus, it is clearly intended to be a concept of broad application, encompassing all matters relevant to a child’s upbringing. There is only one situation in which the FLA gives positive guidance on what the best interests of a child will be, and this arises from the 2006 reforms. When a court is considering who will have parental responsibility in respect of major long-term issues, it is now presumed to be the case that the child’s best

interests will be served by this being shared equally between the parents (s 61DA): see 8.62. The only situation in which this presumption does not apply is when there are reasonable grounds to believe a parent, or someone with whom they live, has: (a) abused the child, or another child in the family; or (b) engaged in family violence.110 While this presumption of equal shared parental responsibility for major long-term issues may be rebutted — that is, it can be shown that this is not in the child’s best interests — in the absence of such proof, the presumption must be applied. Other than in this situation, the best interests of a child are a matter for the court’s discretion. However, the 2006 reforms resulted in Pt VII becoming more prescriptive as to the process to be adopted in exercising that discretion, and this is discussed further at 8.61ff. 8.57 Section 60CC(1) requires the court to take into account certain considerations in determining what is in the child’s best interests. Since 2006, this mandatory ‘best interests checklist’ has been divided into two categories. Section 60CC(2) sets out what are termed ‘primary’ considerations: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

It is clear that the purpose of the addition in 2006 of these primary considerations was to emphasise the objects set out in s 60B (see 8.17) and to try to embed them more into the decisionmaking process. The impact this has had on the way discretion is exercised is discussed in the next chapter. Section 60CC(3) goes on to provide a lengthy list of ‘additional’ considerations that must also be considered by the court. Given the significance of this section to decision-making in children’s cases, the full text of s 60CC(3) is set out below: Additional considerations are:

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

[page 466] (b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child); (c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child; (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; (f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs; (g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; (h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have

on that right; (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; (j) any family violence involving the child or a member of the child’s family; (k) if a family violence order applies, or has applied, to the child or a member of the child’s family — any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order;

[page 467] (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter; (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant.

There is no indication in the Act as to the relationship between the ‘primary’ and ‘additional’ considerations; nor, initially, was there any statement as to how the two primary considerations interact. The latter issue was addressed in 2012 with the introduction of s 60CC(2A) which requires that, when applying these two primary considerations, the court must give greater weight to the second of the listed considerations: the protection of children from harm. Where the court is considering making a consent order, pursuant to s 60CC(5) the court may, but does not have to, take account of the matters in s 60CC(2) and (3). Apart from the demarcation of considerations as either ‘primary’ or ‘additional’, there is no indication of the respective weighting to be attached to the many specified matters: this ultimately comes down to an exercise of discretion based on the circumstances of the particular case. While these sections have been amended in recent years, many of the factors in the best

interests checklist have remained constant, and so earlier decisions of the Family Court decided prior to the various reforms are of continued relevance. 8.58 The paramountcy principle is deceptively simple. Its practical application is, however, very challenging to explain. Thus, for the most part, it is possible to do little more than find case examples by way of illustration. The correct approach to the application of the principle was explained by the Full Court in Marriage of Smythe,111 endorsing the view of Demack J in Jurss & Jurss:112 … the welfare of a child in any particular case must be determined on the facts of the particular case … The inquiry is essentially a positive one designed to promote the interests of the child, not to demote the claims of either parent.113

This highlights the point that, in the exercise of this discretion, limited use can be made of precedents. Each case will turn on its own facts and so factual ‘precedents’ are useful only in giving some indication of how a court might approach a factual matrix, not as a basis for arguing the outcome in a particular case.114 [page 468] 8.59 One issue that arises is the appropriate test or standard by which to evaluate what course is in the child’s best interests. In Marriage of Horman,115 Fogarty J held that the test is to be determined having regard to contemporary social standards, not from the point of view of the standards of the individual parent. In his Honour’s view, the test must be objective, ‘at least in the sense of falling within the wide range of existing social standards’.116 Consideration has also been given to whether it is the long- or short-term welfare of the child that needs to be considered. The approach of the courts has been that, to the extent that it is both possible and reasonable in the circumstances, the court should have regard to the long-term welfare of the

child.117 Inevitably, however, there will be cases where short-term considerations may dominate; for example, because of the extreme youth of the child or where illness or temporary separation requires an order geared to the short term.118 With regard to the meaning of the term ‘paramount’, it is now well established that it does not mean that it is the sole consideration or the first of a list of factors to consider; rather that it is the overriding consideration.119 8.60 The paramountcy principle has for a long time been a pivotal concept in the law dealing with children; however, it has been the subject of some criticism. Some of the suggested problems have been characterised as ones of indeterminacy, fairness and cost efficiency. There have, from time to time, been comments by writers who have put forward alternative approaches. An influential work of the 1970s was a book entitled Beyond the Best Interests of the Child by Goldstein, Freud and Solnit.120 The authors propose, instead of the standard of the best interests of the child, an alternative approach that they call ‘the least detrimental alternative’. This, they explain, is intended to refer to ‘that placement which is the least detrimental among available alternatives for the child’. By this shift in emphasis, they wish to focus on the inadequacy of many of the possible arrangements that may offer themselves when one is considering the placement of children who have been disturbed in the pristine or ‘natural’ environment of their original parental home. The authors say: The concept of ‘available alternative’ should press into focus how limited is the capacity of decision makers to make valid predictions and how limited are the choices generally open to them for helping a child in trouble. The proposed standard is less awesome and grandiose, more realistic, and thus more amenable

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to relevant data-gathering than ‘best interest’. It should facilitate weighing the advantages and the disadvantages of the actual options.121

In addition to the problems that Goldstein et al identify, one aspect of the paramountcy principle that has generated criticism is that it does not allow for sufficient regard to be had to the complex interaction of interests that exist in any family. Intact families do not operate on the basis that children’s interests always override those of other family members, and indeed it is arguable that children’s interests are advanced by appropriate weight and consideration being given to the interests of other family members. This is reflected in Art 3(1) of the United Nations of the Convention of the Rights of the Child, which makes the child’s bests interests ‘a primary’, not ‘the paramount’, consideration. Rhoades has argued for a ‘relational’ approach to decision-making.122 This, she suggests, would permit judges to consider the web of relationships within which children are raised, allow for consideration of parental interests and needs, and facilitate the attainment of post-separation environments that are healthier and promote individual autonomy. Whether or not one agrees with these alternatives, there has been considerable reform in the area of family law and it has not resulted in any significant retreat from the traditional position. As we shall see in the next chapter, modern interpretations of the best interests principle require decision-makers to identify the various relevant parenting options, weigh their advantages and disadvantages in the context of the child’s best interests and make the order that best promotes the welfare of the child. Parental interests must, if necessary, give way.

The mandatory process for determining best interests 8.61 While there have long been mandatory considerations for a court in determining what is in a child’s best interests, the 2006

reforms introduced a prescriptive process for approaching this exercise. In a sense, if the child’s best interests were, and remain, the paramount consideration, one should not expect to see fundamentally different decision-making as a result of these reforms. However, this was precisely the intent of these changes, reflecting a view that the courts were reluctant to depart from traditional patterns of allocating parental responsibility; patterns that were perceived to result in too little real shared care. The way the court has interpreted the current provisions, and their impact on decision-making, are discussed in the next chapter. Here we will set out the legislatively prescribed process for determining parenting disputes. [page 470] 8.62 Section 61DA provides the starting point, by requiring the application of a presumption in favour of ‘equal shared parental responsibility’ (ESPR) when a court is making a parenting order in relation to a child. Even though the presumption of ESPR is relatively new, courts have typically favoured this division for quite some time. It is obvious from the terms of the section that the presumption will only apply where the dispute is between parents; a grandparent, for example, will not be the beneficiary of this provision.123 As the note to s 61DA spells out, and as the Full Court reiterated in Goode v Goode124 (see 9.3), s 61DA is not a presumption relating to the amount of time a child spends with each parent, though no doubt the way this section is worded is partly to blame for a widespread misconception on that point.125 We have already indicated that this is a presumption as to how parental responsibility should be allocated in relation to major long-term issues (ie it is equivalent to a presumption in favour of what would once have been called joint guardianship). It is not immediately apparent from s 61DA why this is so; but this can be deduced from

the following. First, the presumption applies only when parenting orders are being made, but is not a presumption that the child will live equally with both parents (as is made clear in a note following the section). Second, it seems that day-to-day decision-making, another significant aspect of parental responsibility, lies with the person who has physical care of a child at any given time: see further 8.27 on this point. This is true even if there is an order for ESPR. By a process of elimination, this means that an order for ESPR will relate to the remaining aspects of parental responsibility, which effectively means major long-term issues. It is technically possible of course that no orders are made concerning where a child lives and so on, in which case the effect of making an order of ESPR would be to replicate the already existing position under s 61C; that is, parental responsibility in respect of all matters would be joint. Note, however, that obligations as to decision-making for major long-term issues would be different depending on whether an order was made or s 61C applied: see 8.25. The usual situation where a matter is litigated, however, is that orders as to the living arrangements of the child are made, and so the effect of an accompanying order for ESPR will be to grant joint responsibility for major long-term decision-making. Watts J has held in Pavli & Beffa126 that the presumption, and indeed any order phrased ‘equal shared parental responsibility’, refers to the situation where there is to be joint responsibility for all major long-term issues. In other words, if responsibility for one or more major long-term [page 471] issue is not joint, then the term ‘equal shared parental responsibility’ should not be used, as it does not apply.127 His Honour notes128 there has been Full Court comment suggesting the reverse; however, in both instances the comments were obiter and on one of those occasions the Full Court noted it lacked the benefit of full argument on the point. While the Full Court has

not yet revisited this issue, there is judicial support at first instance for the interpretation of Watts J.129 As noted above, the presumption in favour of ESPR does not arise130 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 a child or family violence: s 61DA(2). According to Benjamin J, this objective test should not present ‘an onerous evidentiary hurdle’.131 The presumption applies both to final and interim orders, though in respect of the latter, s 61DA(3) permits the court to find that applying the presumption ‘would not be appropriate in the circumstances’. It was held in Goode v Goode132 that the discretion not to apply the presumption is not ‘to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult’. The Full Court added in Marvel v Marvel133 that s 61DA(3) will be more relevant: … where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue is reduced.134

The presumption may be rebutted where the evidence satisfies the court that it is not in the child’s best interests for the parents to have ESPR: s 61DA(4). Benjamin J has held that, even where the presumption did not apply, given the legislative intent behind the amendments, decision-makers should, when making a parenting order, still consider whether there should be ESPR.135 [page 472] 8.63 As the Full Court puts it, making an order for ESPR ‘triggers’ the application of s 65DAA.136 The court must then consider whether it is in the child’s best interests to spend equal time with

each parent; whether that is reasonably practicable; and, if the answer to both is yes,137 the court must consider making an order to that effect: s 65DAA(1). In Goode & Goode, the Full Court discussed what it means to ‘consider’ making an order: ‘a consideration tending to a result, or the need to consider positively the making of an order.’138 If the court decides not to make that order, then under s 65DAA(2) it must go through the same process in considering whether the child should spend ‘substantial and significant time’ with both parents. In terms of what is ‘reasonably practicable’ in the way of a parenting order, s 65DAA(5) provides a mandatory list of relevant considerations (physical proximity of the parents, parental capacity to implement such an arrangement and to communicate and resolve issues, and the impact on the child) as well as the catch-all ‘such other matters as the court considers relevant’. The High Court in MRR v GR139 said that there must be a ‘practical assessment of whether equal time parenting is feasible’, as the requirement to consider this matter under s 65DAA(1)(b) ‘is concerned with the reality of the situation of the parents and the child’. In Collu v Rinaldo,140 the Full Court emphasised the need to pay close attention to the reasonable practicability of proposals put by both parties. The meaning of ‘substantial and significant time’ is also fleshed out in s 65DAA(3). It means arrangements that, at a minimum, include time over weekends, holidays and weekdays, and that allow the parent to be involved both in the daily routines for the child and events significant to the child, and that also allow the child to be involved in events significant to the parent. It is apparent from statements made by the Full Court in Goode & Goode that, even where an order for ESPR is not made, the court may still consider equal parenting time, either because one parent seeks that arrangement or, despite neither parent seeking it, the best interests of the child might require it.141 Finally, s 65DAB provides that, where it is in the child’s best

interests, the court must have regard to the terms of the parties’ most recent parenting plan, if any. It is one thing to know what the legislation says; it is another thing to understand how a court should approach the evidence before it in applying [page 473] the various sections. The FLA makes it clear that the ultimate goal is to make the order that best promotes the child’s interests, and that the paramount consideration is the best interests of the child: s 60CA. The legislative provisions set out above have been held to provide a ‘pathway’ to determining the child’s best interests. This pathway is discussed in detail at 9.3. It is worth noting at this point, however, that in Taylor & Barker142 the Full Court held that the first step is to make findings on the matters set out in s 60CC. This makes sense, as it would be difficult to apply the various legislative provisions without having made such findings. For example, how can a judge determine if the presumption of ESPR applies, or is rebutted, or consider whether equal shared physical care is in a child’s best interests or practicable, without considering the evidence relevant under s 60CC. However, the Full Court also pointed out that a failure to adopt this specific order of consideration of the evidence would not of itself amount to an appealable error ‘unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered’.143 Equally, in Collu v Rinaldo (above) the Full Court, while confirming this pathway, noted that a finding that the presumption of ESPR applied early in a judge’s reasons was not fatal, so long as it was clear that the conclusion was based on a consideration of the s 60CC factors.144 Thus, while there is a preferred legislative pathway for determining the child’s best interests, a decision-maker may adopt a different pathway, so long as all of the relevant matters are

considered and adequate reasons for the decision are provided. The actual exercise of this discretion by the court is explored in Chapter 9.

Scope of operation of the best interests of the child principle under the FLA 8.64 Since the Family Law Reform Act 1995 (Cth), the approach taken under the FLA is to specify those circumstances in which the ‘best interests of the child’ are to be the paramount consideration.145 Thus, there are other provisions where the best interests of a child are considered, but they are not the paramount consideration.146 Prior to these amendments, the only reference in the FLA to the paramountcy principle (then expressed as the ‘welfare of the child’ principle) was contained in s 64(1)(a), which provided that ‘in proceedings in relation to the custody, guardianship or welfare of, or access to, a child the court must regard the [page 474] welfare of the child as the paramount consideration’. There had been occasions, however, where there was some doubt as to the scope of the operation of the paramountcy principle. For example, in Monticelli v McTiernan147 the applicability of that principle was considered in the context of granting an injunction under s 70C; Nicholson CJ and Fogarty J held that it applied, whereas Chisholm J held that it did not. 8.65 The approach of specifying when the best interests of the child are paramount does not prevent the court from taking into account children’s best interests in other contexts. Indeed, the legislation suggests that this is appropriate either by referring in some contexts to the relevance of the child’s best interests or,

more generally, by virtue of s 43(1)(c) which requires the court, in the exercise of jurisdiction under the Act, to have regard to the need to protect the rights of children and to promote their welfare. Clearly, however, in these circumstances, the best interests principle is not the paramount consideration. 8.66 Although the 1996 amendments provided considerable clarification as to the application of the principle, there remained some areas of doubt. One area where there was obviously still some considerable confusion was the admission of privileged information. Prior to 1996, the approach taken by the Family Court was that in circumstances where a conflict arose, the court must engage in a balancing exercise that involved consideration of the child’s welfare and the policy underlying the exclusionary rule in question: Hutchings v Clarke.148 That case raised the question of the admissibility of disclosures made in the course of pre-trial negotiations. In Hutchings, the evidence was ruled to be admissible, as non-disclosure would adversely impact on the child’s welfare.149 In Reynolds & Kilpatrick,150 Finn J endorsed the view that a jurisdiction that has as its paramount consideration the welfare of children, carries with it the jurisdiction to ensure that the rules of procedure and evidence applied within the jurisdiction serve the paramount purpose of the jurisdiction. Her Honour held that the paramountcy principle should prevail in circumstances where the evidence sought to be withheld would assist the court in its determination of what order would best promote and protect the interests of the child. Not long after the 1996 amendments, this decision was expressly approved by a majority of the Full Court (Nicholson CJ and Frederico J) in Re Z,151 which involved a conflict between the confidentiality provisions of the Community Welfare Act 1983 (NT) and the paramountcy principle. Re Z went on appeal, under [page 475]

the name Northern Territory of Australia v GPAO.152 In the words of the Australian Law Reform Commission, the majority of the High Court held: … the paramountcy principle has no overriding effect on the rules of procedure and evidence, as these are not part of the ‘ultimate issue’ of deciding whether to make a particular parenting order. McHugh J and Callinan J stated that the paramountcy principle is to be applied when the evidence is complete and is ‘not an injunction to disregard the rules concerning the production or admissibility of evidence’. Kirby J, in dissent, queried how confining the operation of the principle to the ‘ultimate issue’ could accord with the need for a court to have all necessary and relevant evidence before it in order to make a decision based on the best interests of the child.153

While the general principle stated by the High Court in Northern Territory of Australia v GPAO remains, note the effect of s 69ZX(4),154 introduced after this case, which says that, in proceedings in which the paramountcy principle applies, if the child’s best interests require it, the court cannot direct relevant evidence not be adduced due to state confidentiality provisions. The Explanatory Memorandum to the Bill that introduced this change makes it clear that the intention was to apply the paramountcy principle to the question of whether otherwise confidential communications should be disclosed in disputes concerning children. This overcomes the particular problem encountered in Northern Territory of Australia v GPAO. In CDJ v VAJ (No 1),155 the High Court again had to consider the application of the paramountcy principle, this time in the context of the admission of further evidence on an appeal concerning a parenting order. It had been submitted that, as an order to admit further evidence was not a parenting order, it was not subject to the best interests of the child. This time, a majority of the High Court disagreed (per McHugh, Gummow and Callinan JJ): [In] an appeal in which the upholding, varying or setting aside of a parenting order is the ultimate matter in issue, the principles which govern the resolution of that issue are the same for the Full Court as they are for the judge at first instance. Consequently, the Full Court is bound to have regard to the best interests of the

child as the paramount consideration when determining the appeal. It necessarily follows that, in exercising its discretion to hear further evidence in respect of an appeal concerning a parenting order, the Full Court must have regard to the effect that the further evidence may have in determining

[page 476] whether the best interests of the child require the upholding, varying or setting aside of the parenting order. It is not to the point that the Full Court in this case was not asked to make a parenting order as such. An order admitting or rejecting further evidence is part of the appeal process in which the best interests of the child are the paramount consideration. In determining whether or not to admit that evidence, the effect that it may have in determining what are the best interests of the child is a factor of great weight. It will be one of the most important discretionary considerations to which the Full Court must have regard.156

Both decisions were referred to in B & B (Jurisdiction),157 where it was said that the clear intention of the 1996 amendments was to ‘limit the reach of the paramountcy principle’. The Full Court approached the matter before it in this case (stay proceedings) by first deciding whether the paramountcy principle applied to the proceedings and then asking whether, in any event, the best interests of the children were a relevant consideration. After answering those questions ‘no’ and ‘yes’ respectively, it said: In general, therefore, it may be said that the best interests principle does not govern various procedural and jurisdictional matters that arise prior to and in the course of parenting proceedings but that the child’s interests will normally be a relevant matter in exercising discretion on such matters and may, in many situations, be the most important matter.158

8.67 Another area that has caused some confusion involves orders and declarations relating to parentage: Div 12 Subdiv E. If an order, for example, requiring a parent or child to undergo a parentage test is a parenting order, then the paramountcy principle would apply. As spelled out by Bryant CJ in Brianna v Brianna,159 it was unclear after the 2006 reforms whether orders relating to parentage testing were parenting orders.160 In that case,

Finn and Thackray JJ went on to say that, even if the child’s interests were not paramount, they were a relevant consideration.161 The matter was resolved by the insertion in 2012 of a sentence at the end of s 64B(1) stating that orders and declarations made under Div 12 Subdiv E are not parenting orders. 8.68 Due to ongoing uncertainty over precisely when the best interests principle applied, the matter was referred to the Family Law Council, which released an initial Discussion Paper in 2004. As the question often arises in the context of the admission of evidence, the Council queried whether legislative changes [page 477] should be made to amend the operation of the Evidence Act 1995 (Cth) in certain circumstances.162 The Australian Law Reform Commission recommended that if any changes were to be made, they should be housed in the FLA.163 The Family Law Council delivered its final Letter of Advice to the Federal Attorney-General in January 2006,164 and this provides a good summary of when the best interests principle is paramount. (However, note that this was delivered before the 2006 reforms.) The Council chose not to make recommendations as to whether or not the principle should apply in various situations where it currently did not (as was recommended in some submissions), but rather focused on what it considered the correct process for resolving the issue. In relation to the question of uncertainty as to the application of the principle, the Council accepted a view put in submissions that, ideally, the FLA should be amended to express a single principle of application and then enumerate the exceptions. These exceptions should include any principles derived from case law. The simple reason for this position is that it is very difficult to work out from the FLA when the paramountcy principle applies, and users of the Act should not have to refer to case law to work this question out.

However, the Council recognised this might require a (further) rewrite of Pt VII and was therefore not practicable at that time. Not surprisingly, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) did not include the changes necessary to give effect to the Council’s preferred option. Therefore, the process of investigation to determine whether the paramountcy principle applies in a given case remains unchanged.

The less adversarial trial 8.69 The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) introduced a very significant feature of family law litigation, with the enactment of Div 12A and what is known as the ‘less adversarial trial’ (LAT). This innovation reflects the Federal Government’s intention to mitigate the adversarial nature of child proceedings and to make them more child-focused, less formal, more flexible and potentially less costly.165 The provisions in Div 12A deal with the conduct of ‘child-related proceedings’, which are defined in s 69ZM to be essentially those proceedings wholly or partly under Pt VII. Section 69ZN then sets out five ‘principles’ that the court must give effect to, in performing duties and [page 478] exercising powers in child-related proceedings, and in deciding how to conduct such proceedings. The principles are that: the court is to consider the needs of the child concerned and the impact the conduct of the proceedings may have on the child; the court is to actively direct, control and manage the conduct of proceedings;

proceedings are to be conducted in a way that safeguards the child and parties against family violence, and protects the child from child abuse and neglect; as far as possible, proceedings are conducted in a way that will promote cooperative and child-focused parenting; and proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible. The duty to ‘actively direct, control and manage the conduct of the proceedings’ may seem to litigants to be a significant departure from the more neutral role of a judge in typical adversarial proceedings. Indeed, it may even seem to a litigant that the more interventionist role required of judges in child-related proceedings evidences some bias on the judge’s part. However, as the Full Court has made clear,166 the best interests of the child and the terms of s 69ZN may require the judge to take a more inquisitorial role in the proceedings in order to reach objective findings. Section 69ZQ prescribes duties imposed on the court in giving effect to the principles, including narrowing of issues, using appropriate technology, encouraging where appropriate the use of Family Dispute Resolution and counselling, and dealing with matters without the physical presence of the parties where possible. Section 69ZT exempts child-related proceedings from various parts of the Evidence Act 1995 (Cth) (including provisions on the giving of evidence, hearsay, opinion, admissions, credibility and character), but leaves it to the court to apply those provisions in exceptional circumstances and to decide what weight to give evidence admitted due to these exemptions. Section 69ZV protects the admission of hearsay evidence of children; this is not a new provision (see former s 100A). 8.70 The provisions in the Act are supplemented by Ch 16A of the Family Law Rules 2004 (Cth). One of the features of the LAT is

that it will most likely be spread out over a period of months, with the potential for orders to be made as the case progresses. In Truman & Truman,167 the Full Court set out what they described as the ‘salient features’ of the LAT, which give a sense of how this different trial procedure looks. [page 479] 8.71 By giving the court greater control over how parenting cases are run, questions of procedural fairness have arisen. Judges in LATs now have much greater control over what evidence will be presented: s 69ZX. In Truman, it was confirmed that the normal requirements of procedural fairness apply to LATs. One particular question raised in that case was what was required of the trial judge, in terms of procedural fairness, if the judge intended to ignore affidavit evidence filed in relation to interim proceedings, when determining those interim matters at the start of the LAT. In this case, the trial judge had made it clear from the outset that this material would not be considered; he had taken oral evidence from both parties and the family consultant, and counsel for both parties had made submissions on the day about the exclusion of this evidence. The Full Court found this satisfied the requirements of procedural fairness. However, the trial judge had failed to afford procedural fairness to the father in another respect. The trial judge had concluded that the mother had changed her position on the orders she sought. The father was entitled to be advised of this conclusion so that he could be heard on the matter. The Full Court in Truman also considered the requirement to give reasons for orders made as the LAT proceeds. Neither written nor lengthy reasons are required, but the grounds leading to the conclusions must be explained and the findings on the principal contested issues listed.

Shortly after Truman, this issue was raised again in Crestin & Crestin.168 Here the trial judge did not meet the required standard; he failed to identify what evidence was relied on; he did not address key issues raised by the mother, namely violence allegations and the child’s ability to cope with a change to the parenting arrangements;169 and he failed to explain what weight, if any, was placed on unsworn statements of the family consultant.

Representation of children’s interests: the independent children’s lawyer 8.72 Article 12 of the United Nations Convention on the Rights of the Child 1989 requires signatory nations to ‘assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child’, with the child’s age and maturity determining the weight to be given to those views. It continues: For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial … proceedings affecting the child, either directly, or through a representative or an appropriate body …

[page 480] There are different ways that children can be heard in judicial proceedings, and the nature of the matter being decided will impact on the model of child representation adopted. Even prior to the FLA it was recognised that children may need some form of legal representation in Family Court disputes. The model of representing children separately in Family Courts has been described as a ‘best interests’ model. Rather than acting on a child’s instructions, the lawyer is there to advocate for the child’s

best interests,170 one part of which is ensuring that the views of the child are taken into account where appropriate. 8.73 Prior to 2006, the lawyers who were appointed to fulfil this role were variously called ‘separate representatives’ and ‘child representatives’; now they are known as ‘independent children’s lawyers’ (ICLs). The current provision dealing with the separate representation of children is s 68L of the FLA, which applies to proceedings in which a child’s best interests are, or a child’s welfare is, the paramount, or a relevant, consideration: s 68L(1). A broad power is invested in the court to order that a child be independently represented where it appears to the court that such an order should be made: s 68L(2). However, where the proceedings relate to international child abduction, the court may only order separate representation where there are exceptional circumstances. These circumstances must be specified: s 68L(3). The court is also empowered under s 68L to make such other orders as it considers necessary to secure independent representation for a child. An order for independent representation can be made by the court on its own initiative, or on the application of the child, an organisation concerned with the welfare of children or any other person: s 68L(4). 8.74 Since the inclusion of the original version of this provision in the FLA, considerable attention has been given by the courts, commentators and various law reform and other bodies to the question of when it is appropriate to appoint a separate lawyer for a child and what role that lawyer should play. As a result of the ongoing debate, the Act, which previously laid down no guidelines, was substantially amended by the 2006 reforms to clarify the situation, and the Family Court of Australia has now endorsed detailed guidelines for ICLs (the Guidelines).171 Further information about the history leading up to these initiatives can be found in earlier editions of this book, most recently the seventh edition.172 We have set out below the legal position in relation to ICLs; that

is, the statutory requirements, the Guidelines and how those rules and guidelines have been interpreted by the court. However, it is important to appreciate that ICLs are [page 481] there to aid the process of resolving child-related disputes and thereby, hopefully, improve outcomes for children. To know whether, and to what extent, they achieve this goal is a separate question. In 2013, the Australian Institute of Family Studies released research findings (the AIFS research) that are an important first step in assessing the impact of ICLs on outcomes for children.173 The authors of that report describe the role of the ICL as having: … three main facets: to facilitate children and young people’s participation in proceedings relevant to their care (the participatory function), to gather evidence and to play ‘honest broker’ by bringing a child focus to proceedings.174

Their research found that: … greater emphasis was placed on the evidence gathering and litigation management functions by professionals (particularly judicial officers and ICLs), while the parents, children and young people interviewed emphasised the participation function.175

The authors concluded that: … the participatory function is complex and contested and … family law professionals, parents, children and young people ascribe differing levels of importance to the three facets of the ICL role. There are varied approaches among ICLs to how they approach the participatory function. In some areas, practices in this regard do not meet the expectations of others, including judicial officers, parents, children and young people.176

We have referred further to the AIFS research below in relation to the ICL’s role and, more particularly, the question of contact between the ICL and the child.

Circumstances in which the court may appoint an ICL 8.75 In a number of cases, the Family Court has taken the opportunity to comment on the circumstances in which appointment of an ICL would be appropriate. In the most important of those cases, Re K,177 the Full Court gave its support to the broad general rule that the court will appoint an ICL when it considers that the child’s interests require independent representation. Their Honours went on to identify [page 482] 13 categories of cases where an ICL should ‘normally’ be appointed,178 in order to provide some assistance in the application of the general rule. These included: cases involving allegations of child abuse; cases where there is intractable conflict between parents, or where a child is alienated from one or both of the parents; and any case in which a child of mature years is expressing strong views, the effect of which would involve changing a longstanding custodial arrangement or a complete denial of contact to one parent. However, this is not an exhaustive list, and the facts may point to an ICL being appropriate in other categories of cases.179 In 2004, the Family Law Council noted180 the significant increase in appointments of ICLs since Re K was decided (in about 10 per cent of all applications for legal aid funding, an ICL was being appointed).181 In developing the Guidelines, the Full Court had paid regard to the provisions of the United Nations Convention on the Rights of the Child and, in particular, to Arts 9 and 12. While acknowledging that on one view it could be argued that the Convention requires that a child be separately represented in any proceedings about where a child should live, or with whom they

should spend time, it was unnecessary for the court to express a concluded view on the matter. Their Honours commented that, regardless of the outcomes on these questions, they ‘[are]satisfied that all of the guidelines that [they] proposed are not only consistent with the requirements of Articles 9 and 12 of the Convention on the Rights of the Child, but further these objects’.182 On the issue of the rights contained in Art 12 of the Convention on the Rights of the Child, this is clearly one area where important Convention principles have not been directly incorporated under recent reforms. While there is provision under the Act for the views of children to be taken into account (s 60CC(3)(a): see 9.40–9.45) and for an ICL to be appointed at the discretion of the court, as the Full Court acknowledged in Re K, the terms of Art 12 arguably require the opportunity for representation in all proceedings affecting a child (which would clearly include child proceedings contested between the parents), either through a representative or, alternatively, through an appropriate body such as an independent children’s legal service.183 [page 483] The appointment of an ICL in international child abduction cases has also been considered by the High Court, in De L v Director-General, New South Wales Dept of Community Services:184 see 8.158. It was held that in cases where return of an abducted child is being defended on the basis of a mature child’s objection, separate representation ought usually to be ordered. Similarly, the Full Court has commented that in international relocation cases involving young children, the appointment of an ICL (especially where no expert evidence was called) should be considered.185 8.76

The question of when to appoint an ICL has implications

for legal aid expenditure.186 In Heard & De Laine; Crown Solicitor for the State of South Australia (Intervener),187 an appeal was brought from the decision of the trial judge on the grounds that the trial judge had erred in not making orders to secure separate representation for the child, and to ensure that the necessary funds were made available. Legal aid funding for the ICL had been withdrawn in that case after the trial had already proceeded for 39 days with over $105,000 expended on legal fees for the husband, wife and child. On appeal, the Full Court rejected the argument put on behalf of the husband to the effect that the Family Court can, pursuant to s 65 (the precursor to s 68L), make orders to ensure the necessary funds are available for independent representation. It was held that the court has no power to order the Legal Services Commission to fund the independent representation of a child and that the court is not empowered to review administrative decisions of a legal aid body, such as the Legal Services Commission. Nicholson CJ expressed reservations about the breadth of this decision in S v S,188 and a year later the issue was before the High Court in Re JJT; Ex parte Victoria Legal Aid.189 A majority of the High Court held that an order requiring Victoria Legal Aid to fund an ICL in the future was not a costs order under s 117, not permitted under s 68L(2) and therefore not open to the trial judge. [page 484] The High Court in JJT did note, though, that spousal maintenance and interim property orders might be made to ensure a child is properly represented where public funding is not available.190 Another costs-related issue that arose was whether the costs of the ICL could be sought from the parties and, in particular, to what extent funding from a legal aid commission was relevant in

the exercise of this discretion.191 Since 14 January 2004,192 the matter is beyond doubt as s 117(3) of the FLA now provides for precisely this type of costs order and s 117(5) directs the decisionmaker to disregard legal aid funding.193

Role of an ICL 8.77 We have indicated above (see 8.74) that the AIFS research identified the ICL’s role as having three key aspects, which derive from the FLA provisions, the Guidelines and its own research findings: (a) facilitating the child’s participation in the process, (b) gathering evidence and (c) litigation management (playing ‘honest broker’ in terms of case management and settlement negotiations). 8.78 Early case law194 reflected controversy as to the role of the ICL because the requirements of such a legal representative are unconventional from an orthodox legal point of view, in that they do not have a client, as such, from whom they can obtain instructions. While this may present some practical difficulty for lawyers filling this role, the concept of a separate legal representative for children in contested child matters is nevertheless clearly a valuable one, ensuring that in appropriate cases the child’s interests are represented independently from the parents. There is also an argument in support of such a provision based on the requirements of the United Nations Convention on the Rights of the Child 1989: see 8.75, in the context of the discussion of Re K.195 8.79 In Bennett & Bennett,196 the role was described by the Full Court as broadly analogous to that of counsel assisting a Royal Commission in the sense that the duty of the ICL is to act impartially but, if thought appropriate, to make submissions suggesting the adoption by the court of a particular course of action, if he or she

[page 485] considers that the adoption of such a course is in the best interests of the child. Further guidance regarding the role of the ICL was given by the Full Court of the Family Court in P & P and Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener),197 in which an eight-point guideline was laid down building on earlier understandings of the role of the ICL from previous cases and guidelines. Those guidelines were endorsed by the Full Court in B & R,198 with a number of additional matters being included. There is now a statutory list based on these decisions: see 8.82. 8.80 There have been a number of other decisions commenting on specific aspects of an ICL’s role. For example, the Full Court of the Family Court in Separate Representative v JHE & GAW199 held that a person appointed to independently represent a child in proceedings under the FLA is empowered to seek orders in proceedings under the Act and, if necessary, to appeal. 8.81 Cases on the role of the ICL have highlighted the part they are expected to play in helping the court secure an outcome that is in the child’s best interests. In T v P,200 it was argued on appeal to the Supreme Court of Western Australia that the trial judge had not taken any, or sufficient, account of the ICL’s recommendations and proposed orders. In rejecting this ground of appeal, Pidgeon J noted that the role of the ICL was to present evidence and argue a course of action based on that evidence, not to make a judgment (as would an expert) as to the outcome which requires some special consideration by the judge.201 An example of an ICL’s submissions being (properly) disregarded was seen in T & N.202 The trial judge, Moore J, refused to make consent orders giving the father unsupervised contact to the two very young children in this case, in circumstances where the evidence established an unacceptable level of risk to the

children from the father. Moore J specifically expressed concern that, in light of the evidence, the ICL would support the parties’ proposed orders.203 The evidence-gathering role of the ICL was explored in DS v DS.204 The ICL in this case had relied on an expert report as to the wishes of the child and failed to make their own investigations which, in the eyes of Ryan FM, lessened the weight able to be given to the expert’s report: Drawing from the decided cases it seems clear that the Court is entitled to expect that prior to a matter coming on for trial, the child’s representative will

[page 486] play a vital role as an evidence gatherer and negotiator. Throughout the life of the litigation, the child representative will have set about gathering evidence on matters that concern the child’s welfare, evidence that will influence the integrity of the outcome in terms of the child’s best interests. It is this latter feature that receives support from proponents of the current model of best interest representation. See, for example the Australia Law Reform Commission’s ‘Seen and Heard’ Report. It is emphasised in the National Training Scheme for Child Representatives conducted by the Family Law Section of the Law Council in conjunction with all Legal Aid Commissions and the Family Court. It is an essential feature in the draft child representation guidelines promoted by the Chief Justice of the Family Court. Although the Act and case law do not specifically demand it, I have no doubt that those appearing as children representatives in this state and this registry know that the Court and profession expect that a child’s representative will have conferred with the children they represent.205

8.82 In 2006, the Commonwealth Family Law Amendment (Shared Parental Responsibility) Act inserted s 68LA into the FLA, which now provides statutory guidance as to the role of the ICL. The definition of the term in s 4(1) makes it clear that these courtappointed lawyers are there to represent the interests of the child, not the child itself. This is reinforced by s 68LA(4). In keeping with the jurisprudence to date, s 68LA obliges the ICL to form an independent view of what is in the child’s best

interests and act in the proceedings in the child’s best interests: s 68LA(2). Subsection 68LA(3) specifically obliges the ICL to make a submission suggesting a course of action, where satisfied that adopting that course of action would be in the child’s best interests. Subsection 68LA(5) then lists specific duties of the ICL (which are based on those outlined in P & P,206 (see 8.79): (a) to act impartially in dealing with the parties; (b) to ensure any relevant expressed views of the child are put fully before the court; (c) if any report or document relating to the child is to be used, to analyse and identify those matters most significant to the child’s best interests and bring them to the court’s attention; (d) to try to minimise the trauma to the child associated with the proceedings; and (e) to the extent it is in the child’s best interests, to facilitate an agreed solution to the dispute. [page 487] Provisions were also added relating to confidentiality of communications between the ICL and the child. Under s 68LA(6)– (8), an ICL is not required to disclose to the court information communicated by the child; however, the ICL may, even where it is against the child’s wishes, disclose any such information where they believe it to be in the child’s best interests to do so. 8.83 As indicated above, one significant aspect of the role of ICLs is the part they play in permitting the views, and indeed voices, of children to be heard in matters that concern them. This is also discussed at 9.44 in the context of the court’s discretion to inform itself of wishes expressed by a child (as the ICL is not the only mechanism for hearing the voices of children in the Family Court). However, it is important to note the terms of s 68LA(5)(b),

which casts a positive obligation on ICLs to communicate children’s views to the court. It may be that the views of the child are obtained through other means (eg via a family consultant); however, as indicated by Ryan FM in DS v DS207 (see 8.81), it is expected that in the normal course of events an ICL will meet with the child. This is spelled out in the Guidelines for Independent Children’s Lawyers (see 8.74), subject to the child being very young (below school age), it being geographically difficult or there being ‘exceptional circumstances’. In DS & DS, Ryan FM noted that one of the most important functions of an ICL was giving the child a voice in the proceedings.208 In this case the ICL did not meet with the child, instead speaking only to the expert who gave evidence of the views of the child. Ryan FM did not consider this acceptable, noting the importance of ICLs meeting with the children they represent so the children can ‘provide input into the litigation via their representative, both as to their wishes and about relevant facts’.209 The research on ICLs carried out by the Australian Institute of Family Studies210 (see 8.74) suggests, however, that many ICLs have little contact with the children who are the subject of the dispute. This research identified that most ICLs took a cautious approach to direct interactions with children, choosing generally to use any meetings for the purpose of familiarisation and explanation of the process and outcomes, rather than to consult the child on their views; that is, the meeting was not generally focused on the child’s participation. When asked to consider their last three cases, 62 per cent of ICLs said they never, or rarely/sometimes, [page 488] met with the child/ren concerned. It is difficult to see how this accords with the spirit of the Guidelines which include the following statements:

The child has a right to establish a professional relationship with the ICL.211 [T]he ICL should … strive to establish a relationship of trust and respect. This is assisted by explaining the role of the ICL, including: how the child can have a say and make his/her views known during the process; that where a child of sufficient maturity wishes to have a direct representative who will act on the child’s instructions, the ICL should inform the child of the possibility of applying to become a part to the proceedings; … how the ICL can be contacted by the child.212 It is expected that the ICL will meet the child unless: the child is under school age; there are exceptional circumstances, for example where there is an ongoing investigation of sexual abuse allegations and in the particular circumstances there is a risk of systems abuse for the child; there are significant practical limitations, for example geographic remoteness.213

The research identified that ICLs have particular concerns about having direct contact where family violence or the child’s safety is an issue; of course this is extremely common in the case load of the court, and would be particularly true of cases where an ICL is appointed. However, the Guidelines acknowledge this and provide guidance on family violence; most importantly they do not suggest that the potential presence of family violence is an exceptional circumstance that warrants minimised contact with the child. Notwithstanding this, the AIFS research found: While each of the legal aid commissions have endorsed the Guidelines for Independent Children’s Lawyers, some commissions described additional, and in some instances differing, guidance to ICLs practising within their jurisdictions, including with respect to meeting with children and young people. When reflecting on their last three ICL cases, lower frequencies of direct contact with children and young people were reported by ICLs in Queensland (12%) and South Australia (27%) than by ICLs in Victoria (54%) and New South Wales (39%) … Notably, 82% of respondent ICLs in Queensland reported that they rarely (41%) or

[page 489] sometimes (41%) had contact with children and young people, and 27% of respondent ICLs in South Australia indicated that they never engaged in such contact.214

In line with the finding that many ICLs had little contact with the child concerned, the small number of children who were interviewed for this research overwhelmingly expressed disappointment at the extent and nature of their interaction with the ICL. Equally, the parents that were interviewed were not satisfied with the ICL’s interactions with them or their children. The research conducted by the Australian Institute of Family Studies is not the only research that raises questions about the extent to which ICLs further the goal of children’s participation in proceedings concerning them.215 Ross, in a qualitative study where 18 experienced ICLs in New South Wales were interviewed, concluded that ‘a discourse of children’s rights that would support children’s participation was in its infancy in the family law courts. This affected the ICLs’ practice with children.’216 8.84 Finally, note should be made of the court’s power to make an order on the application by the ICL to make the child available, as specified in the order, for an examination to be undertaken for the purpose of preparing a report about the child for use by the ICL in connection with the proceedings: s 68M. The section specifies that the order may be directed to a parent of the child; or a person with whom a child lives, spends time or communicates with, or who has parental responsibility, under a parenting order. 8.85 As stated in their opening paragraph, the Guidelines for Independent Children’s Lawyers217 (see 8.74) are very much directed at providing guidance to lawyers fulfilling this role. There are therefore sections on: the role of ICLs; the relationship of the ICL with the child; information the ICL should explain to the child; limitations of the role of ICLs; addressing the views of children;

[page 490] making submissions contrary to the child’s view; meeting with the child; meeting with family consultants; the relationship with parties and their lawyers; family; special medical procedures (see 8.124); and considerations for Indigenous children,218 cultural and religious matters, and children with disabilities. The Guidelines do not have statutory force; however all legal aid commissions (which provide the bulk of ICLs) have endorsed them and they are used in training ICLs (though note the research finding above at 8.83, indicating that some legal aid commissions adopt a difference stance in relation to some issues, including meeting with children).

Discharging an ICL 8.86 Another issue of some significance concerns the capacity of the court to discharge an ICL. In Marriage of Pagliarella,219 where this question arose indirectly, Hannon J referred with approval to the comments made by Fogarty J in Marriage of F & R (No 2)220 that where an ICL takes steps in proceedings which cannot be justified or which are inappropriate, then the court could order their removal.221 Two cases in 2000 considered the grounds for discharging an ICL. In Lloyd v Lloyd & Child Representative,222 the parties had resolved the husband’s first parenting application by consent orders, an ICL having been appointed. When the father later reapplied, the same lawyer for the child was appointed. The father sought her discharge on the basis of bias towards him. Holden CJ

confirmed the power to discharge an ICL before expressing the view that courts should be slow to take this step on the basis of largely unsubstantiated claims by one of the parties.223 His Honour also listed the circumstances that he found could lead to the discharge of a child representative, namely where the ICL acted contrary to the child’s interests; acted improperly in a professional sense or lacked professional objectivity; or where to continue to act would breach a fiduciary duty or give rise [page 491] to a conflict of interest.224 On the facts of this case, there was held to be no reason to discharge the ICL. In T & L,225 Chisholm J expressed similar sentiments to Holden CJ as to the discharging of ICLs. However, in this case the father’s complaint was that a former judge who had found adversely in relation to the father was ‘special counsel’ to the law firm of which the ICL was a partner. Chisholm J accepted that, to a reasonable person, this would create the perception of bias against the father, and the lawyer was restrained from further participation in the proceedings. Reflecting the view in Lloyd v Lloyd and Child Representative that ICLs should not be discharged because one party considers the ICL is not on their side, the Guidelines for Independent Children’s Lawyers226 (see 8.74) state in their Introduction that the ‘way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities’.

Expert evidence 8.87

It is common in contested child proceedings for there to be

evidence of experts, such as psychiatrists and psychologists, put before the court. In the past, such evidence has been viewed with some suspicion by the courts. This approach is well illustrated by the early case of Epperson v Dampney.227 In that case, both parents were seeking sole custody of the two young children. The children had been interviewed by a child psychologist and psychiatrist on a number of occasions arranged by both the parents. The expert evidence called by both the parties suggested that the children should remain in the custody of the father, with whom they had been living prior to the hearing. The trial judge, who had found in other respects the circumstances of the parents to be equal, placed considerable reliance on the expert evidence before the court and awarded custody to the father. In a subsequent appeal by the mother, this decision was reversed, a majority of the New South Wales Supreme Court holding that the trial judge had placed excessive weight on the expert evidence before the court and had given insufficient attention to the significant role of the mother. (As to the court’s support for the so-called ‘mother principle’, see 9.10–9.15.) The essence of the judgment of Street CJ, with whom Glass J agreed, was that the adjudicative function lies with the judge and is not to be relinquished to expert witnesses. His Honour referred to the expert evidence as ‘clinical’ and ‘scientific’, to be contrasted sharply with the ‘human evaluation of the complex web of [page 492] parental and filial emotions’ which is ultimately left up to the ‘conventional and human wisdom of the judge’.228 Street CJ did go on to say that in appropriate cases, real assistance can be derived from expert medical opinion; for example, where the physical or mental health of the child is in question. However, he thought it was undesirable that normal

healthy children are placed on the ‘emotional dissecting table’ and felt that judges should therefore discourage the tendering of medical evidence where no question of ill health arises. He stated that if undue weight were given to medical evidence in contests of this nature, it would result in the child being dragged from consulting room to consulting room in search of psychiatric opinion capable of supporting the particular parent who happened to be the custodian at the time.229 By contrast, Hutley J was more willing to accept the benefits of non-legal expertise. In a dissenting judgment, he stated that a judge’s experience may be very limited in relation to infancy matters and, even if not limited, may be capable of expansion by expert evidence.230 His Honour commented that he was ‘unable to see why the courts in this field should not welcome the assistance of those trained in observing children and analysing their problems’.231 Hutley J accordingly found that there was no objection to the trial judge giving full weight to the expert evidence in this case. It is the latter approach adopted by Hutley J that better reflects the modern view; indeed, Street CJ’s judgment can be best understood as a policy decision, aimed at avoiding children being exposed to unnecessary and inappropriate examination. This is, no doubt, an object with which many would have sympathy; however, it is now widely accepted that it is not appropriate to seek to give it effect by challenging the relevance of such evidence. As we shall see, the current rules relating to the use of expert evidence in proceedings under Pt VII are aimed at avoiding precisely that problem: see 8.87ff. Moreover, the rules on the admission of expert evidence have been amended over time as a result of concerns raised about the costs of multiple experts, the use of seemingly partisan experts, and experts exceeding the limits of their expertise. In relation to the particular problems faced in parenting decisions where expert evidence is being called, see Nicholson CJ and O’Ryan J in Re W & W: Abuse Allegations; Expert Evidence.232 For an interesting discussion by the Full Court of the

role of experts, and in particular their conclusions as to a party’s veracity, see Carpenter & Lunn.233 8.88 The Full Court has long recognised the Family Court’s jurisdiction to direct that a child undergo a medical, psychiatric or psychological examination in pursuance of its jurisdiction to make orders that relate to the welfare of children: [page 493] s 67ZC(1). It was held in Brown & Pederson234 in 1988 that this section gives the Family Court the widest possible powers to make orders intended to safeguard and advance the welfare of a child, and to exercise such control over a child as it deems appropriate for these purposes. These include the power to order that a child undergo medical or paramedical treatment or examination, and to make incidental and ancillary orders to ensure the child’s attendance. Their Honours accordingly held that if, for the purposes of the resolution of what was then called an access dispute, the court considers it would be in the child’s best interest to undergo psychiatric or like examinations, then it may order them.235 This remains the case, despite the High Court’s clarification in 2004 of the limits to the Family Court’s jurisdiction under s 67ZC,236 provided the dispute before the court is one that intrinsically relates to parenting matters. 8.89 The use of expert evidence under the FLA is governed by Pt 15.5 of the Family Law Rules 2004 (Cth). The regime for appointing experts is designed to ensure that expert evidence is only called when necessary to resolve significant issues before the court, and that generally there will be evidence from only one expert on any given issue: r 15.42. Thus, the rules provide for the appointment by both parties, without the court’s leave, of a single

expert, whose primary duties are owed to the court, not the parties: see generally, Divs 15.5.2 and 15.5.5. The court may also appoint a single expert, either on its own motion or on the application of one of the parties: r 15.45(1). If a party wishes to adduce evidence from a further expert on the same issue, then leave of the court must be obtained, though it is clear that leave will not be granted where the party is simply hunting for a different expert opinion: r 15.49.237 Where a single expert has not been appointed, a party must seek leave to adduce expert evidence: r 15.51(1). An independent children’s lawyer (see 8.72ff) may, however, tender evidence from one expert on an issue without leave of the court: r 15.51(2). The rules governing expert witnesses are expressed not to apply in limited situations: r 15.41. This includes evidence from medical practitioners concerning their treatment of a child or party, and experts who have been retained other than for the purposes of giving evidence in the case, such as for psychological treatment. In these cases, the ‘expert’ would not be able to give general opinion evidence in relation to the matters at issue in a case.238 There are also a number of provisions in the FLA that deal with expert evidence. Note should be taken of s 68M, which empowers the court to make an order on the application of an independent children’s lawyer for a child to be made [page 494] available for an examination for the purpose of preparing a report about the child for use by that lawyer in connection with the proceedings. Finally, note should also be made of s 102A which places restrictions on the examination of children in the context of allegations of child abuse. The effect of this provision is to render inadmissible (with some narrow exceptions) the evidence resulting

from the examination, unless prior leave of the court is obtained for that examination to proceed. This provision is discussed further at 9.114–9.115.

Family reports by family consultants 8.90 Family reports,239 which were previously referred to as ‘welfare reports’, are provided for under s 62G. Under that provision the court may, in proceedings under the FLA where the care, welfare and development of a child is relevant (s 62G(1)), direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable: s 62G(2). Section 62G(8) provides that a report given to the court pursuant to a direction under s 62G(2) may be received in evidence in any proceedings under the Act.240 Thus, the court has a discretion whether to receive a report into evidence: see Marriage of Hogue.241 In that case, Wood J held that such a report can be admitted even though objected to on the grounds of hearsay or some other basis of inadmissibility. The question is not one of admissibility of the report,242 but the weight that is to be given to the material it contains.243 Although some differences of view have been expressed over the years as to the appropriateness of counsellors or welfare officers being subject to cross-examination, the accepted view became that parties were entitled to crossexamine the counsellors or welfare officers who prepared the report.244 In Marriage of Harris,245 Fogarty J commented that it would be inimical to the proper workings of the court and to the proper carrying out of the functions of [page 495]

a welfare officer, and that it might be thought by practitioners or litigants that welfare officers or their reports were in some privileged or special position. In his Honour’s view, it is important that justice is not only done, but seen to be done. Similarly, in Marriage of Hall,246 the Full Court strongly affirmed the right to cross-examine counsellors or welfare officers in respect of their reports: To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged … Where there is a proper reason for cross-examination, the court will be assisted, and we have no doubt, so will be the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation … Finally and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied.247

These arguments apply with even more force to family consultants, given their different role: see 2.43. The rules now specifically provide for the oral examination of the person who prepared the report: r 15.04(c). 8.91 In Marriage of Hall, the Full Court also comprehensively canvassed the question of the weight to be given to court reports. There, in a joint judgment Evatt CJ, Asche SJ and Hogan J commented that there is no magic in a family report. Whether or not it is accepted will depend on the totality of the evidence before the court. Their Honours observed that: While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witness in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.248

Nonetheless, the contents of a family report will often be accorded considerable weight, because of the opportunity the family consultant has had to explore matters with the parties and the child. However, a family report is not to be confused with

what is known as a ‘s 11F memorandum’. Under s 11F, the court may order the parties and/or the child to attend an appointment, or a series of appointments, with a family consultant. This may occur fairly early on in proceedings, before any order has been made for a family report. These appointments are referred to as ‘conferences’ and, even though they can be single, fairly brief events, the family consultant may well provide an [page 496] assessment in the form of a ‘s 11F memorandum’.249 Given the generally limited material relied on in preparing such a memorandum, in Maldera v Orbel250 the Full Court sounded a note of caution as to the weight that should be attached to their contents. In this case no family report had been obtained and there was no independent children’s lawyer. The Full Court upheld a ground of appeal based on the trial judge’s failure to investigate properly the views of the child in circumstances where the judge relied heavily on the s 11F memorandum in this regard. 8.92 In Tryon v Clutterbuck and Attorney-General (Cth) (Intervenor),251 the Full Court considered whether parents were entitled to legal representation at interviews undertaken by a family consultant for the purpose of preparing a report under s 62G. Their Honours agreed that the family consultant has an obligation ‘to give each of the parties and any other persons interviewed for that purpose a fair and unbiased hearing’; however, they did not consider this gave rise to any right to legal representation.252 In their Honours’ view, parties will be protected from adverse consequences where a family consultant does not conduct a fair and impartial interview: … [t]he nature of the s 62G report, the reality that the expert opinion evidence contained in it may be tested, and that the weight given to it is a matter for the court, combined with the reality that such evidence is only part of the evidence before the court, and that such weight is ultimately likely to be significantly or

even decisively influenced by findings made by the court with respect to disputed issues of facts …253

The High Court refused special leave to appeal this decision, noting that any perceived procedural defects in a report should be dealt with by cross-examining the author of the report.254 8.93 Finally, the court has a discretion under s 55A(2) of the FLA to direct that a family report be prepared in the context of dissolution proceedings where the court [page 497] is in doubt whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances.

Orders that can be made General 8.94 In the course of the earlier analysis of parenting orders, some consideration has already been given to the form of orders that a court can make (s 64B): see 8.45. Under s 64C, a parenting order can be made in favour of a parent of the child or some other person. Where a parenting order is made by consent and provides that a child is to live with a non-relative or that no parental responsibility is to be given to a relative, then certain preconditions apply before that order can be made (s 65G): see 8.48. The paramountcy principle clearly applies equally to consent orders, but where orders are sought by consent (subject to the special requirements in the case of orders to be made in favour of a

non-relative), the court is entitled to rely on the material put before the court by the parties to satisfy itself that the order sought is in the best interests of the child. In such a case the court may, but is not required to, have regard to the matters contained in s 60CC(2) and (3): s 60CC(5). Aside from parenting orders, other major categories of orders that the court can make under Pt VII include orders for the welfare of children under s 67ZC (see 4.56ff and 8.116ff), protection orders under s 68B(1)(b) (see 3.16), and location and recovery orders (Div 8 Subdiv C) (see 8.146–8.148). 8.95 As noted earlier in the context of parenting orders (see 8.54), pursuant to s 65L the court may make orders for a family consultant to supervise compliance with a parenting order or to provide parties with assistance in relation to compliance. Prior to 2006, this role was filled by counsellors and welfare officers. The non-coercive role of counsellors or welfare officers in connection with parenting orders was emphasised in the reported decisions.255 In Marriage of Bainrot,256 Watson J stressed the fact that the welfare officer was not to police the orders made by the court in the way in which a probation officer or child welfare officer had done in the past, but rather that the officer was to be available as a properly trained resource person to all parties concerned in the arrangements for care and control and access; one to whom they could turn and with whom they should be able to discuss any problems or difficulties that might arise.257 Though it is somewhat difficult to assess, it seems that such orders are not frequently made. [page 498]

Orders least likely to lead to further proceedings

8.96 A further consideration in framing orders is contained in the list of additional relevant factors to be considered in determining a child’s best interests, namely whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings: s 60CC(3)(l). This provision is aimed at encouraging finality in proceedings. It is based on recognition of the problems flowing from ongoing litigation and the desire to protect children from being exposed to frequent traumatic court proceedings. Strauss J in Marriage of Cullen258 summed up the situation as follows: There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.259

Crawford v Dean260 is an example of just such a case. Austin J did not consider that the recommendation of interim orders by the independent children’s lawyers paid due regard to the need to finalise a case that had involved seven years of harrowing litigation: ‘The children’s best interests will not be served by perpetuation of such uncertainty. Nor will the parties’.’261 Like the parties in this case, Austin J considered final orders to be imperative. 8.97 It is, however, not always easy to achieve finality. This is especially so where the separation occurred relatively recently and the parties have not yet settled into a state of some sort of equilibrium, and their circumstances are still in a state of flux. The Full Court was faced with such a situation in Marriage of Archbold.262 Evatt CJ and Fogarty J said that ‘when a custody case comes on for hearing in that situation, there are difficulties about making a final adjudication at that point which is satisfying and likely to be in the long-term interests of the children’.263 As Murray J, concurring, put it: … where it is clear that the welfare of the children will be best served by ‘allowing the dust to settle’, or for the parties’ affairs to resolve or acquire some certainty, the

court should not hesitate to adjourn for a period and then call back on for further evidence.264

[page 499] Thus, while finality of proceedings is highly desirable, it must always be subordinate to the need to treat the child’s best interests as the paramount consideration in the making of parenting orders: s 60CA.

Interim orders 8.98 The legislative authority for making interim orders is contained in s 64B(1)(a), which empowers a court to make a parenting order ‘including an order until further order’. It is a question for the court in each case to determine whether it is appropriate to make an interim or a final order and this must be decided by reference to the best interests of the child: s 60CA. Questions of perceived disadvantage to a parent are secondary to the welfare of the child.265 8.99 We have outlined in earlier editions of this book (most recently the seventh edition)266 the leading authorities that considered the way in which interim applications were approached by the Family Court prior to the 2006 reforms. Marriage of Cilento267 and Cowling v Cowling268 were of particular importance. The latter case summarises the law on interim parenting orders at that time: if a child was in a settled environment, then they would normally be left there until the trial; but if that was not the case, a limited consideration of the best interests checklist would be undertaken to determine the matter. In other words, considerable weight was attached to maintaining a stable ‘status quo’ until the time of trial. 8.100

Since 2006, the situation is different. Section 61DA(3)

provides that the presumption of equal shared parental responsibility (ESPR) applies when making an interim parenting order unless the court considers it would not be ‘appropriate in the circumstances’. ESPR (joint decision-making in respect of all major long-term decisions) will very often be ordered, and the effect of this is to require the court to go through the process laid down in s 65DAA (considering equal parenting time and then substantial parenting time: see 8.61ff) when making parenting orders. Also, considering the benefit to a child of maintaining a meaningful relationship with both parents has been elevated to a primary consideration.269 Section 60B has also been altered: see 8.17. After the passage of these amendments, it was suggested that the principles previously used in determining interim parenting applications would require reconsideration.270 [page 500] The matter quickly came before the Full Court in Goode v Goode.271 The parents in this case separated in late May 2006 and the interim hearing was decided by Collier J on 10 August 2006. Due to the timing of the matter, the orders sought by the parties were not framed in terms of the new law. The father sought parenting orders that effectively had the children spending equal time with each parent. The mother sought orders giving her primary residence and the father contact with the children every second weekend and half the school holidays, with some additional mid-week contact for the oldest child. Both parents sought an order for joint responsibility for the long-term care, welfare and development of the children. The mother had been the primary caregiver both before and after separation, though the father’s position was that he had effectively been forced to acquiesce to the mother’s post-separation proposal. At first instance, Collier J made orders in line with the mother’s proposals, but failed to make an order for ESPR. His Honour did

not suggest that the approach set out in Cowling272 (see 8.99) was inappropriate as a result of the new laws, and found there was nothing suggesting the status quo was not serving the children’s interests. It thus appeared that he applied the approach of maintaining the status quo in the absence of any danger or harm to the children. The Full Court (Bryant CJ, Finn and Boland JJ) held that Collier J erred in his fundamental approach and remitted the matter for rehearing. In reaching this conclusion, their Honours took the opportunity to discuss some of the effects of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), and in particular how it impacted on interim parenting applications. They noted that some aspects of interim parenting applications have not changed: the abridged nature of proceedings; the reliance on agreed facts and issues not in dispute (rather than being drawn into consideration of factual disputes); the practice of having regard to the care arrangements prior to separation; the current circumstances of the parties and their children; and the parties’ respective proposals for the future.273 However, they held that the 2006 reforms changed the application of prior case law to interim parenting decisions. Changes to s 60B, the introduction of the presumption of ESPR and the mandatory consideration of equal and substantial parenting time evince an intention to abandon the previous presumption in favour of preserving a well-settled status quo. The decision-maker must now follow the new statutory steps, and where there is an order for ESPR, this clearly favours substantial involvement of both parents in children’s lives (subject to the need to protect children from harm). Maintaining the status quo may nonetheless result if that is in the children’s best interests, in particular if controversial evidence is not able to be tested at the interim stage.274 [page 501]

Their Honours also considered when it will not be ‘appropriate in the circumstances’ to apply the presumption of ESPR in interim decisions: s 61DA(3). The discretion not to apply the presumption is not ‘to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult’.275 Even if the presumption is not applied, however, the Full Court held that the other changes to Pt VII (ss 60B(1)(a) and 60CC(2)(a)) required an abandonment of any preference for the status quo at an interim stage.276 The Full Court went on to set out a format for dealing with interim parenting cases which gives effect to their conclusions on the operation of the various sections.277 On the facts of the particular case, the Full Court held that the trial judge was correct in not applying the presumption of ESPR. The wife had alleged violence on the part of the father, and these allegations were untested at the time of the trial. For this reason, Collier J held it was inappropriate to apply a presumption of ESPR (even though both parents had sought joint parental responsibility). However, even though the presumption did not apply, his Honour then fell into error in applying Cowling, and not applying ss 60B(1)(a) and 60CC(2)(a). Since the father had sought equal time, the trial judge was bound to consider that option in light of those and other relevant provisions. 8.101 So called ‘relocation’ cases — usually where one parent proposes to move away with the child — present particular problems on an interim basis (for discussion of the treatment of relocation cases generally, see 9.116ff). The FLA does not have any special provisions dealing with parenting disputes involving a relocation issue. In Morgan v Miles,278 a parenting plan provided for the children to live primarily with the mother and to spend time with the father. Before the trial, the mother moved from living in the same town as the father (where the father’s family lived), to another country town about 144 km away (where her family lived). It was

still possible for the children to spend time with the father under the terms of the parenting plan. The father sought an interim order that the mother return with the children. The magistrate who heard the matter took account of the fact that the children were seeing the father at times other than those provided for in the parenting plan (on appeal, the mother was unsuccessful in introducing fresh evidence to challenge this) and ordered the mother to return with the children. On appeal, Boland J noted that this case raised some important questions, including whether the 2006 amendments required a different approach to be applied in relocation cases on an interim basis. She noted that before the amendments, the cases focused on maintaining stability until the trial (the natural consequence [page 502] therefore being that relocation was often not permitted on an interim basis). After reciting the new sections and the findings in Goode v Goode279 (see 8.100), Her Honour pointed out that where there was an order for ESPR, then consultation is required on changes to living arrangements that will make it harder for the ‘left-behind’ parent to spend time with the children (s 65DAC) and that a parent is precluded from making this decision on their own. Her Honour also pointed out that the consideration of equal and then substantial parenting time (which is required where there is an order for ESPR) would be particularly important in relocation cases. Her Honour emphasised that the law was the same for relocation and other cases; however, having said that, she continued: It appears to me that the very difficult issues in cases involving a relocation … make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.280

Boland J’s approach is now routinely cited. While it highlights the need for a fuller inquiry, it also emphasises the importance of stability. In this context, the particular concern is that allowing the child to be relocated on an interim basis risks the possibility of two substantial moves in a short period, given that ultimately the relocation may not be permitted. While such an approach is understandable, it is somewhat difficult to reconcile this with the approach adopted in cases that do not involve relocation but are simply about disputed parenting arrangements. In determining, for example, with whom a child shall live, a pre-existing status quo of primary parenting will not necessarily be preserved, simply to maintain stability in that regard. However, relocation cases do involve the added difficulty of the relocation potentially weakening the relationship between the child and the ‘leftbehind’ parent. Maintaining significant relationships is now of primary importance. As the Family Court has made it clear that orders can be sought restraining the move of parents away from their children (see 9.121), it should be noted that, in theory, there is no reason why a similar approach would not be adopted in this situation; that is, the move may be restrained in the best interests of the child. However, for the reasons discussed at 9.123, the court is hardly likely to be troubled with such applications; see also 8.139 in relation to enforcement of contact orders against parents who fail to exercise contact. 8.102 Cases where sexual abuse of a child has been alleged also raise particular problems: see generally 9.99ff. The Full Family Court has held that the principles in Goode (see 8.100) also apply in such cases: see Vasser & Taylor-Black.281 [page 503]

Variation of orders in respect of children

8.103 In a sense, orders made in proceedings in respect of children are never final, since it is always open to the court to reopen a matter. Walters J in Dodd & Dodd v Stuart282 restated the principle outlined by him in an earlier unreported decision: It is well that I should remind the parties that no order for custody is in any sense permanent. Every order is subject to review and if occasion should arise which would justify it, there would be nothing to prevent the [respondent] hereafter from making [an] application on the ground that the child was not really happy with the [applicants] or not getting sufficient benefit from living with [them].283

8.104 The power of the court in relation to variation of orders is set out in s 65D of the FLA. This includes the power to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order: s 65D(2). This subsection is subject to ss 61DA (presumption of ESPR) and 65DAB (parenting plans). 8.105 Very early in the operation of the FLA, the Family Court responded to attempts by disgruntled litigants to exploit the principle that orders in respect of children are never final by seeking to relitigate issues that had already been adjudicated upon. In Marriage of Hayman,284 the majority of the court held that it is not open to an unsuccessful party to return to court repeatedly in the hope of obtaining a favourable order. For such an application to have any chance of success, it must be shown that there had been a change of circumstances since the previous hearing. This implies that substantial issues not previously traversed had arisen which called for a fresh determination. This approach was endorsed by the Full Court in Rice & Asplund.285 In Marriage of Freeman286 the rationale behind the court’s approach was explained by Strauss J: The welfare of the children is, in this case, as in any others concerning custodial arrangement, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is

[page 504]

usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their wellbeing. Another important reason for approaching with some care an application to overturn such a recent order is that the proper and orderly administration of the law in the community of which these children are part requires that orders made in this jurisdiction should not be overturned unless sufficiently weighty new facts and circumstances are shown to exist which throw sufficient doubt on the desirability of continuing the custodial arrangements brought about by the order. Each case must depend upon its own facts, but, as a general proposition, it might be said that those new facts and changed circumstances should be such as to necessitate a fresh investigation to safeguard the best interests of the children.287

8.106 The requirement for a material change in circumstances before a parenting matter can be relitigated has become known as the ‘rule in Rice & Asplund’.288 The Full Court has had cause to consider the nature of this ‘rule’ in recent years. Generally speaking, the exercise of discretion in the FLA is at large, subject only to specific statutory considerations. Provided a decisionmaker has considered the relevant matters in the way prescribed by statute, it is open to the decision-maker to exercise the discretion in the way they consider best advances the interests of the child. There is nothing in the FLA specifically governing the relitigation of parenting matters, other than s 65D(2); so clearly the question of reconsidering a parenting order is a discretionary one. However, as the Full Court recently reiterated in Hoffman & Hoffman289 (see 14.4), it may create ‘legitimate guidelines’, which guide how a discretion should be exercised and which should be followed unless the particular facts of the case warrant a departure from the guideline. Indeed, the Full Court in Hoffman referred to a minority statement by Mason and Deane JJ in Norbis v Norbis290 to the effect that the Full Court could even create, in rare cases, binding rules that would require discretion be exercised in a certain way. In Poisat & Poisat291 it was argued on appeal that no rule or principle could be said to be derived from Rice & Asplund. The Full Court did not agree, concluding thus: … the ‘rule in Rice and Asplund’ is of long-standing, has been consistently recognised and applied both in this Court and at first instance, and is intended to

apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently.

[page 505] Having regard to all of those matters, a departure from the principle (or ‘binding rule’ or ‘guideline’) emanating from Rice and Asplund, as the second ground of appeal suggests, requires cogent arguments as to why earlier decisions of this Court are wrong and should not be followed. No such arguments have been made in the present case.292

It is unfortunate that the Full Court was not explicit about the nature of this rule or principle. Their Honours do not suggest there is any discretion in applying the rule, but rather state that the only way to avoid its application is to convince the Full Court to abandon the rule. The nature of the rule in Rice & Asplund is discussed further at 8.108. 8.107 Although one would normally expect the issue of whether changed circumstances have been established to be determined as a preliminary issue, this is not necessarily required. In Bennett & Bennett293 the Full Court stated that it is a matter of discretion as to whether a judge embarks on a full hearing of a matter or determines the threshold question as to a change in circumstances. As their Honours noted (and without wishing to derogate from the general principle expressed in Rice & Asplund294 and Marriage of Zabaneh,295 that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances), in some cases it is not easy to determine the threshold question without going into the merits of the matter. Their Honours went on to make it clear that if, in such a case, the trial judge comes to the conclusion that a change of custody is warranted in the interests of the child, it would be ‘unthinkable’ not to give effect to such a conclusion on the basis that no change in circumstances had been shown.296 In King v Finneran297 Collier J, after considering what was

required in the way of a change in circumstances, said that the court must be satisfied that, if the changed circumstances were taken into account, there would be a ‘real likelihood that a change may follow’.298 The Full Court in F & C & Child Representative299 later qualified this statement in light of the High Court’s comments in CDJ v VAJ.300 In the latter case, in relation to the question of admission of further evidence in appeals concerning parenting disputes, the High Court ‘expressed the view that further evidence might only be allowed if it would clearly have led to a different [page 506] conclusion’.301 While the context was somewhat different, the Full Court in F & C was of the view that the underlying rationale was similar, and so the reasoning of the High Court ought to be borne in mind when applying the rule in Rice & Asplund.302 The 1996 reforms raised the question of whether the rule in Rice & Asplund continued to apply after the amendments. This was considered in King v Finneran,303 where a father sought to relitigate recently made parenting orders. In this case, the magistrate who heard the application referred to Bennett & Bennett and decided she would treat the issue of change of circumstances as a discrete threshold test. On appeal, the father argued the 1996 amendments to Pt VII of the FLA rendered Rice & Asplund irrelevant. Collier J did not agree: The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing … would have to be undertaken and completed.304

The same is true in relation to the latest amendments to Pt VII in 2006; that is, Rice & Asplund continues to apply.305 In SPS & PLS,306 Warnick J considered the operation of the rule

in Rice & Asplund and in particular the consequences of whether the threshold test is determined at the beginning or end of the hearing, and the significance of the changes sought. He made seven observations as to the rule: (i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing. (ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention. (iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’. (iv) Discussion in terms that the rule may be applied as a ‘preliminary matter’ or the primary application be first heard ‘on the merits’ may be unhelpful, particularly because of the implication that, if the rule is applied as a

[page 507] preliminary matter, the parenting application is not then dealt with ‘on the merits’. (v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. (vi) ‘Shorthand’ statements of the rule may contribute to its misapplication. (vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.307

Warnick J said that when the question of change in circumstances was addressed as a preliminary issue, the inquiry remains a determination ‘on the merits’. Dismissing an application at an early stage of proceedings — that is, before all the evidence is available — is not the same as a technical dismissal of an application, such as for the failure of a party to appear. Rather, dismissal will be because: … there is an insufficient change of circumstance shown to justify embarking on a

hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.308

8.108 Warnick J’s comments were endorsed and expanded on by the Full Court in Marsden v Winch.309 Having reiterated the underlying rationale of the rule in Rice & Asplund, the Full Court made it clear that the rule is but a manifestation of the best interests principle and that, in determining the manner in which the rule shall apply, procedural fairness must be provided. In summary, their Honours said there was a two-step process to be followed in applying the rule in Rice & Asplund: … there is a requirement: (1) For a prima facie case of changed circumstances that have been established; and (2) For a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.310

[page 508] In 2015 the Full Court said in Carriel & Lendrum311 that the case law to that date had not explicitly decided the question of ‘whether when applying the principle in Rice & Asplund, it is necessary to address in any detail, or even at all, the factors for determining what is in a child’s best interests contained in s 60CC of the Act’.312 In Rice & Asplund itself Evatt CJ (with whom Pawley and Fogarty JJ agreed) stated: Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of s 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. (emphasis added)313

In Carriel & Lendrum the Full Court, after reviewing the authorities, concluded: … where the principle in Rice & Asplund is being considered, it will not be

appropriate or necessary to discretely address many of the factors in s 60CC of the Act in determining where the best interests of the child might lie. In a case where the principle in Rice & Asplund arises for consideration, there are two circumstances which are central to the decision. First, there will already exist a parenting order and, axiomatically, the terms of that order will reflect the best interests of the child/ren at the time of its making. Second, the fact that an order has been made reflects that disputation between parties to a parenting dispute, such dispute being inherently contrary to the best interests of the child/ren whilst it exists, has been brought to an end by a curial order. Those twin circumstances dictate the conclusion that it cannot logically be in the best interests of the child/ren to embark upon further litigation enquiring as to the child/ren’s best interests unless it is first demonstrated that a sufficient change in circumstances has occurred since the parenting order was made.314

The Supreme Court of Western Australia recently had this to say on the matter: The assessment of whether the asserted change in circumstance is ‘significant or substantial’ is simply part of a composite multi-faceted process for assessing whether the relitigation of parenting arrangements is in the best interests of the child.315

Section 60CA applies to the decision to refuse an application to vary a parenting order, and so the child’s best interests are the paramount consideration;316 the question of what is in a child’s best interests involves the exercise of a discretion.

[page 509] The difficult question that is not clearly answered by this case law is whether there is any discretion not to apply the rule in Rice & Asplund in the absence of a significant or substantial change in circumstances. We suggest that the decision in Carriel & Lendrum supports the conclusion at 8.106 above, that the requirement for a significant change in circumstances before a parenting order can be relitigated is a rule that binds the exercise of this discretion; that is, if there is no discretion not to apply the rule in the absence of the required change in circumstances. If this is the case, then it would seem that this does amount to the type of binding rule contemplated by Mason and Deane JJ in Norbis v Norbis317 — however, as indicated above (see 8.106), they were in the minority. We would suggest that, as in many other jurisdictions,318 to avoid uncertainty as to the nature of this rule/principle, it be addressed by amendment to the legislation.

Interrelationship between parenting orders and family violence orders 8.109 In the next chapter, we consider the general provisions in Pt VII of the FLA dealing with family violence as an issue in contested child proceedings; that is, how it affects the exercise of discretion in the making of parenting orders: see 9.28–9.39. However, there will be situations where there are protective orders made by another court in relation to family violence that constrain contact between family members. Division 11 of Pt VII deals with the very specific question of the interrelationship between ‘certain orders, injunctions and arrangements made under [the] Act that provide for a child to spend time with a person’ and ‘family violence orders’. A ‘family violence order’ is

‘an order (including an interim order) made under a prescribed law of a State or Territory law to protect a person from family violence’: s 4. ‘Family violence’ is defined expansively in s 4AB(1) (see further, 3.3). 8.110 Prior to the 1996 amendments, there had been concerns about the interrelationship between what were then called ‘access’ orders, and protection orders.319 For example, a court in a state or territory may have granted a protection order preventing a person from coming within a certain distance of the home. This may, however, have conflicted with an existing order for access made by the Family Court permitting the non-custodial parent to collect the child from the [page 510] home. Alternatively, it may have been the case that at the time that an application for access came before the Family Court, a protection order was in existence under state or territory law of which the Family Court was not aware, and as a result, an access order was made which conflicted with that order. In such a case, the terms of the access order would override those of the state protection order because of the operation of s 109 of the Constitution.320 The new Div 11, which was introduced in the 1996 reforms, sought to address these sorts of problems by spelling out the interaction between orders made by the Family Court and protection orders made under state or territory law by a court of summary jurisdiction. It was clear from the terms of the provisions that one goal was to promote the protection of victims of violence. However, the Family Law Council raised concerns about the new provisions and the tension created between protection from violence and the promotion of contact. One of the issues it noted was that often protection orders were made subject to any

parenting orders; thus when the question of orders giving contact came before the Family Court there would be no inconsistency with the existing family violence order, and so the protections built into Div 11 did not work to the benefit of victims of violence (as old s 68P(1) applied only when there would be inconsistency between the two).321 The terms of Div 11 were recast in the 2006 reforms and it is clear that some of the recommendations of the Family Law Council have been given effect to. 8.111

Section 68N states that the purpose of Div 11 is:

(a) to resolve inconsistencies between: (i) family violence orders, and (ii) certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child; and (aa) to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and (b) to achieve the objects and principles in section 60B.

Following on from the recommendations of the Family Law Council, the objects of Pt VII set out in s 60B now include protecting children from harm and family violence (s 60B(1)(b)). The objects also include, however, the maintenance of a meaningful involvement with both parents ‘to the extent consistent with the best interests of the child’: s 60B(1)(a). Section 60CC(2A), introduced in 2012, elevates the primary consideration of protection of children from harm over maintenance of parent– child relationships in the determination of a child’s best [page 511] interests. This reinforces the fundamental principle that a child’s right of contact with their parents is always subject to protecting that child from harm. 8.112

Under s 60CG a court is required, in considering what

order to make, to ensure among other things that the order is consistent with any family violence order and does not expose ‘a person to an unacceptable risk of family violence’. It would seem that the purpose of this section is to ensure that orders for contact with a child do not expose third parties otherwise protected by family violence orders to risk.322 The operation of this section is, however, stated to be subject to the paramountcy principle, and therefore there may be circumstances where a court determines it is appropriate to make an order inconsistent with a family violence order.323 In these circumstances, s 68P applies and sets out various requirements that a court must fulfil if it proposes to make an order that will effectively put a child in contact with a person where that is inconsistent with a family violence order. Among other things, the court must ensure that an explanation is given to all persons concerned in understandable language about the operation of the order: s 68P(2)(c) and (d). The order itself must include a detailed explanation of how the contact provided for in the order is to take place: s 68P(2)(b). The Act also specifies those individuals and office-holders who must be given a copy of the order: s 68P(3). Section 68Q then spells out that the preexisting family violence order is invalid to the extent that it is inconsistent with the later parenting order. While these provisions are clearly aimed at the Family Court explicitly taking into account any existing family violence order, it has to be noted that if the court failed to comply with the terms of s 68P, by virtue of s 68P(4) any order made by the court would not thereby be invalid.324 8.113 However, this does not mean a later family violence order cannot override an existing parenting order. Div 11 also makes provision for the variation of a parenting order by a state or territory court making a family violence order. By virtue of s 68R(1), if the relevant state or territory court has jurisdiction in relation to matters arising under Pt VII, the court may, subject to other subsections of s 68R, exercise that jurisdiction in the course

of family violence proceedings to revive, vary, discharge or suspend an existing order that permits contact with the child. [page 512] 8.114 Variation of a parenting order in family violence proceedings may be made by the court on its own initiative or on the application of any person: s 68R(2). The limitations on varying an order are as follows: The court must make or vary a family violence order: s 68R(3)(a). This means the court cannot decline to make or vary the family violence order, but go on to vary a parenting (or other listed) order. The court must have before it ‘material that was not before the court that made that order’: s 68R(3)(b). In other words, if the material about family violence now being relied on to seek (or change) a family violence order was before the court that made the parenting order, then the original parenting order cannot be changed. The proceedings to make or vary the family violence order must not be interim proceedings: s 68R(4). The considerations relevant to the court in deciding whether to vary a parenting order are now set out in s 68R(5): – the purposes of the Division (see s 68N); – whether contact is in the child’s best interests; and – if changing a parenting (or other listed) order that was inconsistent with a family violence order when it was made, the court has to be satisfied that this is appropriate because someone has been, or is likely to be, exposed to violence as a result of the operation of that parenting order. It is clear from s 68S(1)(e) that, in the exercise of the power

under s 68R, the paramountcy principle does not apply, though the best interests of the child are a relevant consideration: s 68R(5) (b). 8.115 This difference in focus between the Family Court (where the best interests of the child are the paramount consideration in determining whether a parenting order should be made that is inconsistent with a family violence order: see s 60CG) and state and territory courts varying parenting orders, enables the latter courts to give primary regard to the protection of the person in whose favour the family violence order was made. What s 68R envisages is a situation where, since the s 68P contact order has been made (ie an order inconsistent with a family violence order), there have been further developments that give rise to a justified fear of violence.325

The Family Court’s welfare jurisdiction 8.116 By virtue of s 67ZC(1), the Family Court has a wide jurisdiction to make orders relating to the welfare of children. This jurisdiction exists in addition to the jurisdiction that a court has under other sections in Pt VII. In deciding whether to [page 513] make an order under this provision, a court must regard the best interests of the child as the paramount consideration: s 67ZC(2). The Family Court’s jurisdiction under s 69ZC(1) is confined to children of a marriage: see s 69ZH(2). This is because the states’ referral of powers in respect of ex-nuptial children under the 1987 referral of powers to the Commonwealth did not extend to ‘welfare’ matters: see further the discussion of referral of powers at 4.89ff. In Western Australia, where the Family Court of Western

Australia has jurisdiction over nuptial and ex-nuptial children, s 162 of the Family Court Act 1997 (WA) gives that court ‘jurisdiction to make orders relating to the welfare of children’. In Re Bernadette,326 the Full Court held that the application of s 67ZC is limited to children under 18 (cf the situation for child maintenance: see 11.18ff). Thus, the Full Court dismissed an appeal relating to orders in respect of a child who had since turned 18. It has also been confirmed that s 67ZC does not apply to a foetus, and so an injunction restraining the termination of a pregnancy was not granted.327 8.117 A potentially wide range of matters can be litigated under s 67ZC.328 Historically, much of the jurisprudence on this section dealt with the question of whether the parents of an intellectually handicapped minor, in the exercise of their parental responsibility, have the power to authorise a sterilisation operation on non-therapeutic grounds, or whether, as a matter of law, the prior permission of the Family Court is required before such an operation can proceed. The cases have typically involved young girls329 approaching puberty, who have a moderate-tosevere intellectual disability and where there are concerns with regard to the child’s ability to cope with menstruation, and/or concerns about the risk of pregnancy and the resulting problems that that would entail for the child. [page 514] In each case, the matter has been presented to the court on the basis that the operation is necessary in the best interests of the child. In a number of cases, the jurisdiction of the Family Court has been invoked as a result of third party intervention, taken for the purpose of preventing the operation from proceeding. 8.118

There was initially some uncertainty as to the legal

position in view of conflicting first instance decisions.330 The situation was clarified in the High Court’s decision in Re Marion:331 see 8.31. This case came on appeal from the Full Court of the Family Court, where in a split decision it was held that parents could lawfully authorise a non-therapeutic sterilisation, provided that they were acting in the child’s best interests.332 In the Full Court, Strauss J, with whom McCall J agreed, held that the parents could lawfully authorise such an operation, provided that they were acting in the child’s best interests, although his Honour went on to suggest that Family Court approval should nevertheless be obtained. Nicholson CJ dissented, adhering to the earlier views he had expressed in the case of Re Jane333 to the effect that sterilisation involves interference with the right of bodily inviolability and falls within a category of procedure to which a parent cannot lawfully consent. 8.119 The High Court held, by a majority (Mason CJ, Dawson, Toohey and Gaudron JJ), that the decision to authorise sterilisation of a child, otherwise than as an incidental result of surgery performed to cure a disease or to correct a malfunction, is not within the ordinary scope of parental power to consent to medical treatment, and therefore court authorisation is required. After emphasising that sterilisation requires invasive, irreversible and major surgery, the majority of the court put forward the following justifications for its decision to treat non-therapeutic sterilisation as a special case, going beyond the parents’ capacity to consent: Court authorisation is required, first, because of the significant risk of making a wrong decision, either as to a child’s present or future capacity to consent or about what are the best interests of the child who cannot consent, and secondly, because the consequences of a wrong decision are particularly grave.334

Their Honours made it clear that their decision to require court authorisation in such cases was grounded in a fundamental right to personal inviolability existing

[page 515] in the common law. In their view, it is the function of the court to decide whether in the circumstances of the case, it is in the best interests of the child to authorise the sterilisation, always having regard to the exceptional nature of this procedure which is a step of last resort. Of the dissenting justices, Deane and McHugh JJ, delivering separate judgments, were prepared to allow parents to authorise the carrying out of a sterilisation procedure in certain specified circumstances, whereas Brennan J held that neither a parent nor a court may authorise a non-therapeutic sterilisation of a minor. 8.120 From a practical point of view, applications for approval of sterilisation are usually granted, provided adequate evidence is adduced to persuade the court that the operation is in the child’s best interests.335 In Re Marion itself,336 which came before Nicholson CJ, it was held that the proposed procedure (hysterectomy and ovariectomy) was in Marion’s best interests. 8.121 The interrelationship between the Family Court’s jurisdiction with regard to non-therapeutic sterilisation operations and state legislation enacted in a number of jurisdictions purporting to regulate this area was addressed by the High Court in P & P.337 By a majority (5:2), the High Court held that the Family Court has the power to authorise a sterilisation procedure in circumstances where that treatment would be contrary to the Guardianship Act 1987 (NSW), and further, that the legislation would be invalidated under s 109 of the Constitution, but only in so far as it would prohibit treatment authorised by the Family Court. Thus, where specific state legislation exists, the relevant body that has jurisdiction to make determinations under that legislation (eg a Guardianship Board) can give the necessary authorisation, provided that the Family Court has not made a ruling either granting or prohibiting the procedure. In the event

that the Family Court has assumed jurisdiction in respect of the matter, the state body has no power to make the order. Note this is not the case for ex-nuptial children, as the Family Court does not have jurisdiction in this respect: see 4.57. 8.122 The Family Law Council, in its report, Sterilisation and Other Medical Procedures on Children,338 has advocated that a strict approach be taken to non-therapeutic sterilisations of children, with the imposition of criminal penalties in respect of unauthorised sterilisation procedures. In setting out recommendations as to the circumstances in which it would be appropriate to authorise sterilisation, the Council recommended that authorisation of [page 516] sterilisation be prohibited in certain circumstances, including: sterilisation purely for contraceptive purposes; sterilisation as a means of masking or avoiding the consequence of sexual abuse; or sterilisations performed on young women prior to the onset of menstruation, based on predictions about future problems that might be encountered with menstruation. However, in P & P339 the Full Court criticised these recommendations as too inflexible. That case involved an application by the child’s mother, supported by the father and the child’s separate representative, for the authorisation for the child to undergo a hysterectomy for the prevention of menstruation and the removal of the risk of pregnancy. In a unanimous decision, the Full Court granted the application. Their Honours commented that the case before them highlighted the dangers involved in the Council’s approach of laying down categories of circumstances in which sterilisation may never be authorised: The danger involved with the Council’s approach is that, taken literally, it may lead to the adoption of an approach that these factors are to be ignored in the decision-

making process, which in our opinion would make a travesty of it. The other danger is that of compartmentalisation, which may lead a decision maker to lose sight of the overall object, which is that the best interests or welfare of the particular child are paramount.340

A report commissioned by the Australian Human Rights Commission preferred the view of the Family Law Council,341 noting further that ‘there is good reason … to believe that girls continue to be sterilised, and sterilised in numbers which far exceed those that have been lawfully authorised.’342 8.123 There can be little doubt that the ‘best interests’ guideline approach, which has been favoured by the Full Court in preference to the more prescriptive approach advocated by the Family Law Council, does vest in the court a great deal of discretion, and the approach of the court in P & P has attracted criticism from some quarters.343 The ultimate question is whether court authorisation is necessary [page 517] to safeguard children’s interests, particularly in situations where it might be seen that parental interests could conflict with those of the child. One advantage of requiring approval is that there is likely to be an independent children’s lawyer appointed to safeguard the child’s interests in such cases. In Re Marion (No 2),344 Nicholson CJ also set down a list of relevant considerations to be taken into account in such cases, which was later referred to by the Full Court in P and P as providing a useful practical application of relevant principles.345 Procedures for the authorisation by the Family Court of such medical procedures for children are set out in Pt 4.2 Div 4.2.3 of the Family Law Rules 2004 (Cth). These Rules are designed to expedite the hearing of such cases and to reduce costs. They also set out the evidence required (r 4.09(2)) to support an application, which includes expert evidence establishing: the likely long-term effects of carrying out (or not) the procedure; the

risk of the procedure; reasons as to why any less invasive treatment is not being used; whether the child consents; and the views of the child’s carer or parents. 8.124 For some years now, medical procedures that have been held to require court authorisation have been referred to by judges as ‘special medical procedures’, though this precise term is not used in the legislation.346 The Family Law Rules refer to ‘major medical procedures’ that are not ‘for the purpose of treating a bodily malfunction or disease’; and the example of nontherapeutic sterilisation is provided.347 Whichever term is used, another example that falls squarely within the intended category of procedures would be the removal of a healthy organ for transplant to another child.348 However, it has become increasingly apparent that deciding whether a procedure or treatment is ‘special’ — and thus requires court authorisation — is very difficult in some cases. Cases have arisen over the harvesting of bone marrow from a child to benefit a third party;349 immunisation of a child;350 administration of an unapproved therapeutic drug to an infant with [page 518] a fatal condition;351 and, most commonly, cases dealing with what are increasingly referred to as ‘gender affirmation’ treatments or procedures.352 The latter class of cases arise either because the child suffers from what is called gender identity dysphoria (GID)353 (see also 8.33–8.34) or because of medical conditions where the chromosomal gender of the child differs from the way the child has been raised and/or appears externally. In an early case, Re A (a child),354 an application was made seeking authorisation for sex reassignment of a 14-year-old child from female to male to address extreme masculinisation which had resulted from an abnormality in the adrenal gland. In

granting the application, it was held by Mushin J that this case came within the principles laid down by the High Court in Re Marion:355 the proposed treatment fell outside the ordinary scope of parental consent and court authorisation was a necessary procedural safeguard to protect the interests of the child. In Re Alex (hormonal treatment for gender dysphoria)356 it was held that the decision whether to administer hormonal treatment to a 13-year-old girl suffering from GID, so as to commence a sexchange process, was one requiring court authorisation. In that case, the authorisation was granted.357 When Alex was 17, a further application was made to authorise the removal of both of Alex’s breasts, a step Alex intended to take once 18 anyway, but by permitting the operation before he turned 18, Alex could access state social services. The application was granted by Bryant CJ.358 The question of whether treatments such as those considered in Re Alex are, in fact, ‘special medical procedures’ was the subject of an appeal to the Full Family Court of Australia in Re Jamie359 (see also 8.33). At first instance, Dessau J had granted approval for Stage 1 of treatment for GID to begin for a child aged just under 11 at the time. The parents appealed and specifically challenged [page 519] the status of treatment for GID as a special medical procedure. Treatment for GID typically occurs in two stages: Stage 1 involves reversible drug treatment delivered at a younger age, whereas Stage 2 treatment happens some years later and is irreversible. The Full Court held that court authorisation is not required for Stage 1 treatment because it is therapeutic, does not involve treatment that is invasive and irreversible, and therefore the consequences of a wrong decision are not grave. Thus, it was not captured by the test in Re Marion for a special medical procedure requiring court oversight. However, the Full Court distinguished the irreversible treatment delivered at Stage 2 of the treatment. The court

confirmed that a Gillick-competent360 child (see 8.30ff) could consent to Stage 2 treatment, but held that because of the significant risk of a wrong decision being made on the question of competency, and the grave consequences of a wrong decision, only a court could determine whether a child was Gillickcompetent in respect to consent to the treatment. We have discussed above at 8.33 some of the problematic aspects to the court’s decision, in particular as they relate to the question of parental responsibility for decision-making on behalf of a child. In the context of the question of how this decision fits with the High Court’s decision in Re Marion — on which the court relied — we note that the High Court in Re Marion was clear that a necessary condition for a medical procedure to be ‘special’ (and so require court oversight) was that it was non-therapeutic;361 that is, the treatment was not required due to underlying bodily malfunction or disease. This was the case for the sterilisation being sought in Re Marion and other similar cases — the girls in question did not need the procedure to cure any illness, such as cancer for example. Conversely, in Re Jamie the Full Court held that GID is a recognised psychiatric condition362 and thus the treatment for it is therapeutic; however, while this was recognised as a reason for not requiring court authorisation for Stage 1 treatment, this fact appears to have been overlooked when considering Stage 2 treatment.363 Further, there was no explanation as to why there was a significant risk of a wrong decision being made as to Gillickcompetency of a child to consent to this particular treatment. In Re Marion itself, a central element of the significant risk referred to was that the parent might exercise their authority contrary to the interests of the child because of a conflict with their own interests; in other words, a parent may consider it easier to sterilise their daughter rather than deal with the consequences if she is not sterilised. This bears little comparison to the case of GID; no doubt most [page 520]

parents would see irreversible treatment for GID as a last resort and only support it where the child and their medical advisers are strongly in favour of the treatment taking place; that is, there is no reason to think there will be a conflict of interest between parent and child. The consequence of the decision in Re Jamie is that Australia remains the only country in the world where a court must be involved for a child to undergo this type of treatment. There have been quite a number of decisions since Re Jamie, and in all cases the court has in effect rubber-stamped what the parents, child and medical advisers have agreed should happen.364 There is a serious question as to why this condition is treated differently and why parents (and taxpayers) should be put to this cost in order for a child to undergo treatment. Strickland J has also raised the question as to what this decision means from a jurisdictional point of view. As his Honour notes, an application for an order declaring a child’s Gillick-competency no longer falls under Div 4.2.3 of the Family Law Rules 2004 (Cth), as it is not an application seeking authorisation of medical treatment. Given the reading down of s 67ZC by the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B (No 3)365 (see 8.125), Strickland J concludes that ‘[i]mportant jurisdictional issues are therefore likely to arise where a subject child is not a “child of the marriage”, or where it is a person other than a parent seeking’ the order, ‘particularly where the child is subject to a guardianship order’, and further notes that most courts hearing matters post-Re Jamie have not considered the question of jurisdiction.366 The complexity of the decision in Re Jamie explains why there has been judicial recognition of the problems being experienced by parents and medical practitioners in ascertaining whether a medical procedure is ‘special’ or not; it is accepted that applications are made just to be safe. The issues and cases are discussed at some length by Young J in Re Baby D (No 2).367 That case involved an application to authorise withdrawing artificial

life-prolonging treatment being used on an infant. This was held not to be a ‘special medical procedure’. It is clear from the case law that, even if the procedure is not ‘special’, the court has the power to make an appropriate order as an aspect of parental responsibility. In most cases the parties all support the procedure in question and so the court may find itself not being legally required to authorise a procedure, but making [page 521] the necessary order in any event to provide certainty and protection for those performing the procedure. For an interesting discussion of some of the further issues raised by these cases, in particular the rights of children, see the 2009 Costello Lecture delivered by Chief Justice Bryant.368 8.125 Despite the broad role given to the Family Court in the area of medical treatment of children, the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v B (No 3)369 establishes that the welfare power has its limits. The issue in this case was whether, utilising the welfare power, the Family Court could order the release of immigrant children in detention centres on the basis that detention was not in their best interests. This is a question of jurisdiction, and has been discussed in that context at 4.65–4.68. Perhaps not surprisingly, the High Court rejected the notion that the Family Court could make the orders sought. Even under s 67ZC there needs to be some relationship to marriage or parental responsibility before the court can step in and make an order concerning a child.370 The cases discussed above clearly fall into that category, as they determine the extent to which parents are able, or not, to make decisions about the medical treatment of their children. In Re Alex,371 however, Alex’s legal guardian was the state and he was in the care of his aunt. The application was

therefore initiated by a government department. In spite of the interposition of the state as guardian in this case, the matter was still within the Family Court’s jurisdiction under s 67ZC because it was fundamentally about the exercise of parental responsibility.372 Subject to the constitutional limits on the exercise of power under s 67ZC,373 as the Full Court pointed out in Jacks v Samson,374 this section considerably expands the jurisdiction of the Family Court by virtue of its similarity with the parens patriae jurisdiction; though rarely used, the power extends far beyond special medical procedures. It is to be noted that the inherent parens patriae jurisdiction of the Supreme Courts is diminished by the Family Court’s welfare power. Section 69B of the FLA provides that, where proceedings can be brought under Pt VII, they must not be ‘instituted otherwise than under this Part’. As the FLA does not give the [page 522] Family Court jurisdiction in respect of all matters relating to all children, there remain matters that are able to be dealt with by the Supreme Courts utilising their parens patriae powers.375

Enforcement of orders in relation to children Background 8.126 The issue of enforcement of orders, particularly in the area of children, has long been a problematic one for the Family Court. Essentially, the dilemma that the Family Court has faced has been to reconcile its enforcement role, and the need to ensure adherence to and respect for its orders, with the objective of being

a ‘helping court’ that seeks to encourage a conciliatory approach between parties. A further factor complicating the situation has been the court’s concern to have regard to the welfare of the child, which has generally been perceived as not being promoted by the imposition of strict sanctions on non-compliant parents, such as imprisonment. There is concern that a tough approach on sanctions is likely to exacerbate any existing difficulties in the relationship between the parties and may therefore be counterproductive. In practice, it has historically been ‘access/contact’ orders that have proved especially problematic. In view of the ongoing nature of such arrangements and the potential for changes in circumstances, there is greater potential for these orders to be breached. 8.127 In attempting to resolve this dilemma, for many years the court adopted a position of minimal intervention: where possible, to encourage conciliation and the discontinuation of proceedings with regard to the enforcement of sanctions. Where cases did arise for judicial determination, they were generally dealt with very leniently: see Marriage of Sahari,376 where it was stated that the punitive powers of contempt should be seen as an exercise of last resort. However, by declining to exercise its powers of enforcement, the court was open to the criticism that it creates the impression of weakness, lacking the authority to enforce its own orders. This, in turn, may give rise to a perception that the court is condoning non-compliance, with the result that offenders may believe that they can breach orders with impunity. 8.128 The persistent problem of enforcement led to the Australian Law Reform Commission’s report Contempt,377 the broad thrust of which was implemented by the Family Law Amendment Act 1989 (Cth). This inserted a new Pt XIIIA into [page 523]

the FLA, dealing with the enforcement of orders under the Act, including orders in relation to children. The goal was to strengthen enforcement while at the same time recognising that parents could have legitimate reasons for breaching orders. However, in 1992 the Joint Select Committee on Family Law378 expressed concern that the Family Court had not used the enforcement powers given to it, particularly in cases where the non-custodial father had been denied or had been frustrated in contact with his children by the custodial mother.379 While endorsing the approach of the court in treating imprisonment as a penalty of last resort, the Committee commented that if the court was to gain public confidence in this regard, then it must demonstrate its readiness to apply the alternative sentencing provisions available under the Act which, in the majority of cases, will be more appropriate than the imposition of a jail sentence.380 Following a further report by the Family Law Council on the matter in 1998,381 the Family Court of Australia released a joint research paper assessing the impact of changes brought about by the Family Law Reform Act 1995 (Cth), and this provided interesting data on what was happening in the area of enforcement of parenting orders and, in particular, contact orders. The report, The Family Law Reform Act 1995: The First Three Years,382 found that: between 1995–96 and 1999–2000 the rate of applications for enforcement of parenting orders had more than doubled; almost all applications were brought by contact parents about contact; and the majority of applications were found to be either trivial or without merit.383 However, while the authors of this report were still working on it, the Federal Government introduced the Family Law Amendment Bill 1999 (Cth) which implemented recommendations made by the Family Law Council. The authors of The Family Law Reform Act 1995: The First Three Years made submissions to the government to the effect that the proposed provisions were too rigid and did not account for their research findings about the number of frivolous and trivial enforcement applications being brought. In response, the

government amended the Bill to permit the adjournment of enforcement proceedings to allow for the making of modified parenting orders.384 [page 524] In November 2000, the Family Law Amendment Act 2000 (Cth) was passed. However, the approach to enforcement adopted by those reforms385 was then abandoned in the 2006 reforms, the key aim being (again) to expand and strengthen the court’s powers when dealing with the failure of a party to comply with orders affecting children.

The current legislative scheme 8.129 The current provisions apply where someone has ‘contravened’ an ‘order under [the] Act affecting children’: s 70NAC. The latter phrase is defined in s 4(1) and includes parenting orders, injunctions, registered parenting plans and also certain orders made by way of sanction under Div 13A. The meaning of ‘contravene an order’ is also defined (in s 70NAC) and means intentionally386 failing to comply with an order that binds the person, or making no reasonable attempt to do so, and also preventing a person bound by an order from complying with it or aiding or abetting someone in contravening an order. The note to this section highlights that a contravention will not have occurred where the action in question is consistent with a parenting plan that came after the relevant order: see also s 64D. 8.130 Where in proceedings relating to an order affecting children it is alleged that the order has been contravened, the court can vary the order without a separate application, whether or not the allegation is proved: ss 70NAA(2) and 70NBA. Generally, the question of the variation will then be determined

by the child’s best interests; however, note s 70NBA(2), which applies where there has been a serious contravention of an order without reasonable excuse under Subdiv F. Whether the original order (or ‘primary’ order as it is called in the Act) is varied, and if so how, will depend on the individual circumstances. There is no limitation in this regard; for example, it may be varied to provide more, less, or different, time with the person who alleged the contravention: see s 70NBA(3). In Sandler & Kerrington,387 the mother was found to have breached parenting orders made some nine months earlier. She did not attend the contravention hearing and the parenting order was reversed in favour of the father. On appeal, she raised the fact that she was not notified that parenting orders would be considered, that the father had not sought care and that the reasons of the trial judge who originally awarded her care of the child were not before the federal magistrate. The reasons of the trial judge showed that evidence had been accepted that it would [page 525] be harmful to the child to change care. It appears the federal magistrate reversed care with the thought that this would be challenged and there would soon be a fuller hearing.388 It is not surprising that Warnick J found this was not a proper basis for reaching a decision to reverse care and that the decision was flawed due to the lack of information before the court. His Honour noted that this section was designed, at least in part, to make it easier for the court to vary a parenting order during contravention proceedings where it became apparent that there was a problem being caused by the form of the orders, such as an ambiguity.389 A separate application is thereby avoided and in such cases a summary process is appropriate. However, clearly a more significant change can be made, and in that case the normal

process (as set out under the terms of Pt VII) is required. If the parenting orders have been made recently, this includes establishing a change in circumstances: see Rice & Asplund,390 discussed at 8.108. This process was not followed here. Moreover, even though the relevant forms pointed out to the mother that care could be changed, given that the father had served on her another application regarding parenting orders, seeking that the child live with the mother in the interim, it was reasonable for her to assume that the federal magistrate would not consider a reversal of care. Thus the mother was denied procedural fairness. However, despite the order reversing care having been made less than two months earlier, and even though his Honour had no evidence before him on the effects on the child of what he presumed was a traumatic move, Warnick J assumed it would not promote the child’s best interests to return him to his mother, leaving the matter to be resolved in the pending parenting proceedings.391 Dobbs & Brayson (No 2)392 provides an example of where a federal magistrate imprisoned a mother as a sanction for breaching a parenting order and reversed care. The Full Court allowed the appeal as the federal magistrate failed to consider properly whether this was in the child’s best interests. These decisions highlight the application of the paramountcy principle in the making of a varied parenting order. The child’s best interests are equally relevant to the making of an order for compensatory time (see 8.134 below). In Spencer & Verity,393 the Full Court (in refusing an appeal against orders for compensatory time on the basis that the judge had failed to follow the legislative pathway prescribed for making parenting orders) held that the facts of the case determine the extent to which the decision-maker has to address each of the relevant matters [page 526] set out in Pt VII; some cases would require ‘a comprehensive or

even exhaustive consideration of “best interests”’, while others, such as this case, would not.394 8.131 In addition to amending existing parenting orders, the court can impose various sanctions, but the sanctions available will depend on the type of contravention. There are now four categories of cases: contraventions alleged but not established (Subdiv C); established contraventions for which there was a reasonable excuse (Subdiv D); less serious contraventions without reasonable excuse (Subdiv E); and more serious contraventions without reasonable excuse: Subdiv F. 8.132 Section 70NAE sets out what is meant by a ‘reasonable excuse’, but it is clear that the circumstances set out there do not provide an exhaustive list: see s 70NAE(1).395 Failing to understand the obligations created by an order at the time of contravention amounts to a reasonable excuse; however, this is qualified by the rider that the court must still be ‘satisfied that the respondent ought to be excused’: s 70NAE(2). In Ongal & Materns396 the Full Court said that the discretion as to what is a reasonable excuse (and whether a breach ought to be excused) is ‘of considerable breadth’ and it was ‘not possible to chart its metes and bounds’.397 Warnick J in Childers & Leslie398 has made further points about the interpretation of the term ‘reasonable excuse’ (and ‘reasonable grounds’, discussed below) in s 70NAE; first, that these phrases should be interpreted consistently with similar terms ‘of like generality’ such as ‘just cause’. Thus, in line with authority, they must be interpreted consistently with both the Act as a whole, and with regard to the other specific provisions to which they relate.399 Consequently, his Honour said that any ‘excuse [that] is proffered must be reasonable in the context of the intentions of the Act as reflected by the expression, in s 60B of the Act, of the Objects of Part VII of the Act’.400 Cronin J in Abud & Abud,401 having referred to Warnick J’s comments, said that in determining the question of reasonableness, the judge must therefore look at the objects and principles of the FLA, treating

them as the same as other relevant provisions of the Act. However, it is questionable whether this approach is strictly correct. As the Full Court recently reiterated in Maldera & Orbel,402 the objects sections are not facultative; they indicate the purpose of the legislation and operate only as an aid to construction in the case of ambiguity or uncertainty. [page 527] Where an order as to where the child shall live, or with whom they shall spend time or communicate, is contravened, a reasonable excuse for the contravention will include where the person believed on reasonable grounds that the contravention was necessary to protect the health or safety of themselves, the child or some other person. This requires both that the belief is genuinely held (a subjective test) and that the belief is based on reasonable grounds (an objective test).403 However, the duration of the contravention must be limited to the period necessary to protect the relevant person: s 70NAE(4), (5) and (6). The same is true of contraventions that interfere with the exercise by a person of parental responsibility: s 70NAE(7). 8.133 Where a contravention is alleged, but not established (Subdiv C), the only additional order the court may make (apart from varying the primary order) is a costs order against the person alleging the contravention. While the power to make a costs order under s 70NCB404 is discretionary, the court must consider making such an order where there has been a prior allegation of a contravention that was either not established, or was established but no order under (specified) provisions was made: s 70NCB(2). 8.134 Where there is a contravention of a parenting order resulting in the applicant spending less time with the child, but a reasonable excuse is established (see 8.132), then the court can first order compensatory or ‘make-up’ time with the child. Indeed,

the court must consider making such an order, but no compensatory order is to be made where it is contrary to the child’s best interests: s 70NDB.405 It is notable that the sections referring to ‘make-up’ time refer to the parent being compensated, not the child, which is not in keeping with the longstanding view espoused by the court that contact is the right of the child, not the parent.406 Where there is no compensatory order, then, as with the prior category, the court may make a costs order against the applicant, and similar provisions apply mandating consideration of this option in certain circumstances: s 70NDC. 8.135 Where there is no reasonable excuse for a contravention, then as indicated above, different considerations apply depending on whether the contravention [page 528] is ‘less’ or ‘more’ serious. There are a number of relevant factors in determining the seriousness of a contravention. First, where there has been no prior sanction nor any adjournment of a contravention application to allow for new parenting orders to be considered (see s 70NEB(1)(c)), then the matter will be ‘less’ serious: s 70NEA(2). This will not be the case, however, if the court is satisfied that, in relation to the current contravention, the person in question has ‘behaved in a way that showed a serious disregard for his or her obligations under the primary order’: s 70NEA(4). If that is the case, the contravention is ‘more’ serious. The Full Court in Elspeth & Peter407 said: The theme that emerges from an examination of several decisions by Federal Magistrates is that ‘serious disregard’ tends to be found in cases of deliberate, premeditated non-compliance with the orders; and continued and protracted breach.408

Even if there has been a prior sanction or there are adjourned

proceedings, the court may still determine the matter is one which should be treated as ‘less’ serious: s 70NEA(3). Having decided the matter is ‘less’ serious, the court then has the power to make any or all of a range of orders, set out in s 70NEB: requiring attendance at a parenting program; compensating for time lost with the child; adjourning the proceedings to allow for a party to apply for a variation to the primary order (see s 70NEB(6)); requiring the respondent to enter into a bond; requiring repayment of expenses incurred due to the contravention; and costs orders: see s 70NEB(7). Section 70NEB(2) applies to orders made against someone other than the person who committed the contravention. Again, in relation to compensatory time orders, these must be considered where the breach of a parenting order has resulted in lost time, though they will not be made where they are contrary to the child’s best interests: s 70NEB(4) and (5). 8.136 Finally, Subdiv F deals with the ‘more’ serious contraventions that are committed without any reasonable excuse. If no sanction has previously been ordered for a contravention, or if there are no adjourned proceedings pending the variation of parenting orders (see s 70NEB(1)(c)), then this Subdivision will apply if the court is satisfied that the person who contravened the order ‘behaved in a way that showed a serious disregard for his or her obligations under the primary order’: s 70NFA(2). The Subdivision also applies where there has been a prior sanction (or adjournment), unless the court is satisfied409 that the contravention should be treated as ‘less’ serious: s 70NFA(3) and (4). [page 529] Thus we can see that where there is no prior sanction, then normally the matter will be classified as ‘less’ serious; however, the

court may, based on the behaviour of the person committing the contravention, decide the breach should be treated as ‘more’ serious. Conversely, where there has been a prior sanction, the contravention will normally be treated as ‘more’ serious, unless the court decides otherwise.410 The court’s powers to make orders where the contravention is more serious are set out in s 70NFB. In addition to time and expense compensation orders, costs orders and bonds (though see the different provisions in these regards), there is the ability to make a community service order, impose a fine and to order a term of imprisonment (maximum 12 months). There are then specific provisions about the conditions under which a community service order can be imposed (s 70NFC), their variation and discharge (s 70NFD), bonds (s 70NFE), and the enforcement of bonds and community service orders: s 70NFF. Where a contravention is ‘less’ serious, it is clear from the terms of s 70NEB that the court does not have to impose a sanction. However, in the case of a ‘more’ serious contravention, under s 70NFB, some sanction will have to be imposed by the court. Subsection (1) requires a full costs order against the respondent be made, unless that is not in the child’s best interests. Where that costs order is made, the court must consider making at least one more order under s 70NFB(2). Where no costs order is made, the court must make at least one order under that subsection. 8.137 Imprisonment is a very serious matter and so there are further constraints on the making of such an order. First, it is not open where the contravention relates to the non-payment of child maintenance under the Act, unless the failure to pay was intentional or fraudulent: s 70NFB(4). Nor can imprisonment be ordered where the contravention was of an administrative assessment of child support, a child support agreement or a courtordered departure from the administrative assessment (s 70NFB(5)), though in the case of child support there is no exception based on intentional or fraudulent conduct.

This approach could be said to reflect the primacy that the FLA places on the right of children to have contact with their parents. Serious breaches of parenting orders that impinge on that right can be the grounds for imprisonment. However, even the most flagrant failure to provide support for a child cannot. It is worth noting that the most likely category of parent facing imprisonment is a parent with shared or primary care of a child; conversely, it is entirely possible that a parent paying no child support has little or no contact with their child. Therefore, imprisonment will almost invariably affect the child’s right to have contact with the imprisoned parent, whereas imprisonment of someone failing to pay child support may in some instances have no significant impact on parent–child contact. It seems difficult to justify, therefore, the different treatment of the payment of [page 530] child support on the basis of maintaining meaningful parent–child contact.411 There are, of course, other sanctions applicable for non-payment of child support, as well as different mechanisms for enforcement of child support obligations: see Chapter 11. 8.138 It is clear from s 70NFG(2) that imprisonment should be considered as a sanction of last resort. Thus, the reasons for choosing imprisonment as the sanction must be stated by the court: s 70NFG(3). In Dobbs & Brayson,412 the Full Court had the following to say about imposing a sentence of imprisonment: While together, the terms of s 70NFB(1) and s 70NFG(2) require the court to make an order under s 70NFB(2), but proscribe imprisonment unless the court is satisfied other available orders are inappropriate, we think that, rather than arriving at imprisonment by merely excluding alternatives … a need to address the intrinsic aptness of imprisonment to the contravention, remains. (original emphasis)413

An example of the use of imprisonment in relation to denial of

what was then called contact can be seen in D & C (Imprisonment for Breach of Contact Orders).414 The magistrate in this case considered that resorting to imprisonment was necessary as the mother had over a long period been entirely non-compliant, expressed no remorse and expressed no intention of complying with the contact orders. The Full Court in McClintock & Levier415 suggested that imprisonment under the FLA has a different purpose to its role in dealing with criminal offenders. Brewster FM imprisoned a mother for six months for taking the child out of the state to avoid contact, in circumstances where she claimed there were serious concerns about contact taking place. Applying criminal sentencing principles, the federal magistrate made it clear that the goal of the sentence was to act as a deterrent to other parents. The Full Court upheld the mother’s appeal, saying Brewster FM’s aim of making an example of the woman was an error of law and the sentence was manifestly unjust. 8.139 One interesting aspect of the enforcement of Family Court orders, in particular those allowing a child contact with a parent, is that the debate always centres on the actions of parents denying the other parent contact, in breach of orders. In this context we have noted the historical, and constant, criticism that the Family Court is weak in this regard. It must be noted, however, that there will be many occasions when contact with a parent is ordered, but that parent fails to [page 531] exercise that contact.416 Indeed, the parent may choose to relocate away from the child. Contact is a right of the child. A parent’s failure to exercise court-ordered contact is equally a breach of that court order and often not in a child’s best interests. Many carer parents may well want the other parent to exercise contact — both

for their sake and the sake of the child. However weak enforcement is in relation to carer parents (and note that such parents have been imprisoned), it must be acknowledged that enforcement is immeasurably weaker where it is the parent who chooses not to exercise contact. Even if a court were minded to punish a parent for such a breach, there is little incentive for the carer parent to bring an expensive enforcement action. (Note the discussion of the equivalent problem in relation to a parent relocating away from a child at 9.123.) 8.140 The standard of proof required under Div 13A (including what is a reasonable excuse) is generally the lower civil standard of a balance of probabilities, ‘having regard to the gravity of the allegation’:417 s 70NAF(1) and (2). There are a few exceptions to this, including where the court is ordering imprisonment: s 70NAF(3). These provisions have caused some problems because the standard of proof depends on the penalty and this cannot be known to the parties during the hearing. The Full Court in Dobbs & Brayson418 commented that: … notwithstanding the ‘oddities’ of process that may arise, the effect of s 70NAF(3) is this: before an order of the type referred to in that subsection is made, the court must be satisfied beyond reasonable doubt of all the factual matters that relate to the finding of contravention, to the treatment of the contravention as one to which Subdivision F of Division 13A applies, and … if imprisonment is imposed, the inappropriateness of other available orders.419

The only solution, it seems, is for parties to assume from the start that the higher standard is required. Where decision-makers intend making orders requiring the higher standard of care, they should explicitly note that fact.420 8.141 In addition to the general power of the Family Court to punish for contempt of its power and authority contained in s 35, the power exists under s 112AP to punish a contempt of court that does not constitute a contravention of an order under the FLA or, where it does constitute a contravention of an order under that Act, where it involves a flagrant challenge to the authority of the

court. Thus, the provision is directed to contempt in the nature of a challenge to the [page 532] court’s authority or the interference with the administration of justice rather than a contravention of an order of the court, except where that contravention involves a flagrant challenge to the authority of the court. Under this provision, the court can impose fines and/or the sanction of imprisonment subject to such terms as the court specifies: s 112AP(4) and (6). In Ibbotson & Wincen,421 consideration was given by the Full Court to the interpretation of s 112AP, in particular, the meaning of the phrase ‘flagrant challenge to the authority of the court’. It was held that repeated breaches are not required before a flagrant challenge to the authority of the court can be established. Their Honours stated that the use of the term ‘flagrant challenge’ to the authority of the court is intended to underline the exceptional or striking nature of the contravention in question, and thus to differentiate it from what might be described as the general run of breaches that are intended to be dealt with under s 112AD: in each case, it is a question of fact and degree whether the stringent terms of s 112AP(1)(b) are satisfied. On the facts of that case, in which the husband refused to return the child to Australia after taking the child to the United States for a holiday, it was held that the conduct of the husband was particularly blatant: the husband had made a conscious and deliberate attempt to thwart the orders of the court and acted in complete disregard of the rights of the wife and their child. In these circumstances, his conduct clearly came within the terms of s 112AP(1) and the sentence of 12 months’ imprisonment imposed at first instance was found not to be excessive. The more recent cases of Ganem & Ganem (No 2)422 and Tapper &

McFarlane423 provide summaries of the law in this area and reiterate that the standard of proof for each element of the offence of contempt is beyond reasonable doubt.

Specific legal mechanisms dealing with noncompliance 8.142 Where there has been a breach of obligations created under a parenting order that deals with where a child lives, or with whom they spend time or communicate (see ss 65M, 65N and 65NA), the person in whose favour the relevant parenting order was made can apply to the court for the issue of a warrant for the arrest of the alleged offender: s 65Q. Before this power to issue a warrant can be exercised, the section requires, among other things, that there is an application before the court for the alleged offender to be dealt with under Div 13A for the alleged contravention (s 65Q(1)(c)) and that the court is satisfied that the issue of a warrant is necessary to ensure that the alleged offender will attend before a court to be dealt with under Div 13A: s 65Q(1) (d). [page 533] Subject to these preconditions, the court may, where satisfied that there are reasonable grounds for believing that there has been a contravention under any of ss 65M, 65N or 65NA, issue a warrant authorising a person to whom it is addressed to arrest the alleged offender: s 65Q(2). A warrant stops being in force either on the date specified in the warrant if that is a date not later than six months after the issue of the warrant, or otherwise, six months after the issue of the warrant: s 65Q(3). Sections 65R–65W regulate how people who have been arrested are to be dealt with.

Legislative restrictions regarding the removal of children from Australia 8.143 Provisions set out in Subdiv E of Div 6 create offences where a child is removed from Australia, in circumstances where that child is the subject of an existing parenting order or where there are proceedings pending in respect of that child with regard to parenting orders: ss 65Y and 65Z. The types of parenting orders included in these provisions are orders determining with whom the child will live, spend time and communicate, and those allocating parental responsibility: s 65X(1). A maximum penalty of three years’ imprisonment applies for contravention of these provisions. 8.144 The only exceptions to the scope of this prohibition are found in ss 65Y(2) and 65Z(2), which permit removal of the child from Australia where it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the Pt VII order was made, or alternatively, if it is done in accordance with an order of a court made under Pt VII or under a law of a state or territory. Where permission is sought from the Family Court for the temporary removal of the child from the jurisdiction, the court may call for security to ensure the parties return; for example, Marriage of Kuebler,424 where the wife was granted permission to remove the child from Australia on condition of payment of $3000 into the husband’s solicitor’s trust account as surety for her return. In Marriage of Line,425 the Full Court held that in exercising the discretion to set a sum for security for return of a child, a court ought to consider: … the two-fold purpose [of setting such a sum], namely: (a) to provide a sum which will realistically entice the person removing the children to return; and

(b)

to provide a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas in an endeavour to obtain the return of the children.426

[page 534] The Full Court decisions in both Kuebler and Line also address the question of the factors relevant to determining whether to grant an application for temporary removal of the child. In Line it was said: The next matter is obviously the degree of risk that the departing parent, once permitted to leave Australia, will, despite assurances to the contrary, choose not to return. In assessing that degree of risk, obvious considerations are the existence (or otherwise) of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here), the existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues) and the existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there). We think it will also be relevant, in exercising this discretion, to consider whether the country to which the departing parent intends to travel with the children is or is not a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention). However, in considering and deciding what weight to give to this factor, the court would have to bear in mind that, even if the designated destination is a convention country, once the departing parent has left Australia there may be little to prevent him or her deviating from that designated destination to another destination in a non-convention country or, after going to the designated destination, from then travelling on to a non-convention country. Finally, we think that a relevant consideration in the exercise of this discretion is the financial circumstances of both parties, and in that context the relative hardship which the departing parent would suffer by the imposition of security at a particular level as compared with the hardship which the non-departing parent would suffer if the security were fixed at a lower level. In each case, questions of hardship to the children flowing from any hardship experienced by the relevant parent would also come into consideration.427

8.145 Obligations are also cast on captains, owners and charterers of aircraft and vessels in circumstances where the relevant parenting orders have been made (s 65ZA), or where

proceedings for such orders are pending: s 65ZB. Under s 67ZD, if a court having jurisdiction under Pt VII considers that there is a possibility or threat that a child may be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court on such conditions as the court considers appropriate. [page 535]

Location orders 8.146 An important facilitative feature of the legislation is the provision made for location orders and Commonwealth information orders in Subdiv C of Div 8. As the name suggests, these orders are designed to assist people with parenting orders locate the child the subject of the parenting order, where the whereabouts of the child are unknown to them. A ‘location order’ is defined in s 67J(1) as an order made by a court requiring a person to provide the registrar of the court with information that the person has or obtains about the child’s location, or alternatively, an order requiring the secretary of a department, or an appropriate authority of a Commonwealth instrumentality, to provide the registrar of the court with information about the child’s location that is contained in, or comes into, the records of the department or instrumentality. This latter form of location order is, in turn, defined as a ‘Commonwealth information order’: s 67J(2). 8.147 A location order in relation to a child may be applied for by a person in whose favour a parenting order (relating to with whom the child shall live, spend time or communicate, or the allocation of parental responsibility) has been made. Further, any other person concerned with the care, welfare and development of a child may apply: s 67K. In deciding whether to make a location

order in relation to a child, the court must regard the best interests of the child as the paramount consideration: s 67L. There are two separate provisions in the Act: one for the making of location orders (other than Commonwealth information orders) and one for Commonwealth information orders: see ss 67M and 67N respectively. In each case, the effect of the order is to cast a duty on the person to whom it applies to provide the information sought as soon as practicable, or as soon as practicable after the information is obtained: ss 67M(5) and 67N(7) (subject only to the qualification that in respect of a Commonwealth information order, the records of the department or Commonwealth instrumentality need not be searched more often than once every three months unless specifically ordered by the court: s 67N(9)). Section 67P restricts the disclosure of information provided under a location order, imposing penalties for unauthorised disclosure.

Recovery orders 8.148 In addition to locating children, there are occasions when it is necessary to obtain an order to secure the return of a child. Recovery orders are dealt with under ss 67Q–67Y. The term ‘recovery order’ is defined in s 67Q as encompassing a range of orders directed at securing the return of the child to a parent or other specified person.428 A recovery order in relation to a child may be [page 536] applied for429 by: a person with whom the child is supposed to be living under a parenting order; a person with whom the child is to spend time or communicate; a person who has parental responsibility for the child; a grandparent, or any other person concerned with the care, welfare and development of the child: s 67T.430 It seems that the court can also make a recovery order on

its own initiative, in facilitation of other orders.431 In proceedings for a recovery order, the court may make such recovery order as it thinks proper: s 67U. However, this section is stated to be subject to s 67V, which directs that in deciding whether to make a recovery order in relation to a child, a court must regard the best interests of the child as the paramount consideration. In Jollie & Dysart,432 the Full Court upheld an appeal concerning a dormant recovery order which was included by the judge as a mechanism to encourage one of the parents to comply with the other parenting orders; the trial judge’s error was in not being explicit about how such an order advanced the best interests of the child.

International child abduction 8.149 Australia has ratified the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Child Abduction Convention) and this forms the cornerstone of the regulation of international child abduction. In 1983, s 111B was inserted into the FLA enabling the enactment of the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which give effect to Australia’s obligations under the Convention. The objects of the Convention are to secure the prompt return of children wrongfully removed to, or retained in, any contracting state and to ensure that the rights of custody and access under the law of one contracting state are effectively respected in other contracting states: see Art 1.433 A significant consequence of this is that the primary concern of the court is to secure the [page 537] return of the child to their home jurisdiction: the ‘best interests of

the child’ is not the paramount consideration.434 8.150 A ‘Central Authority’ has been established in each Convention country435 whose role it is to secure the return of children who have been wrongfully removed. Applicants seeking assistance under the Convention must deal with these Central Authorities. In Australia, the Regulations make provision for the appointment of Commonwealth and state and territory Central Authorities. The Commonwealth Central Authority is currently the International Family Law Section of the Attorney-General’s Department. In the first instance, a person who has ‘rights of custody’ (see 8.153) will approach the Central Authority in their country: see reg 11(1). In Australia, the Commonwealth Central Authority reviews all applications and then, if they meet the relevant criteria, sends them either to the appropriate state, territory or overseas authority (depending on whether it concerns a child abducted into, or out of, Australia). For an account of the practical operation of the Convention in Australia, see the Full Court decision in Harris v Harris.436 8.151 The procedures in respect of applications made in Australia are set out in the Regulations.437 The child must be under the age of 16: reg 2(1). Where a child has been wrongfully removed to or retained in Australia, the Commonwealth Central Authority must, on receipt of a valid application, take action under the Convention to secure the return of the child to the country in which they habitually resided immediately before their removal or retention: reg 13(1). Under reg 13(4), the action taken may include all or any of the following: seeking the voluntary return of the child; seeking an amicable resolution to the dispute over the child’s location between the parties; transferring the request to a responsible Central Authority; and applying for a court order under Pt 3 of the Regulations. While the Central Authority may try to resolve the matter by amicable means, if it

cannot do so, the Authority should normally seek a court order under Pt 3. [page 538] A person, institution or other body having ‘rights of custody’ is also permitted to bring the relevant application: regs 6 and 14(1) (b).438 8.152 Regulation 14 sets out the orders that can be sought, and they include orders for the return of children, issuing of warrants, orders restricting the movement of the child, interim orders placing the child in the care of a particular person, institution or body, and any other order necessary to give effect to the Convention. Obviously, the types of orders for children removed to Australia and for children removed from Australia differ accordingly: compare reg 14(1) and (2). 8.153 ‘Removal’ and/or ‘retention’ is ‘wrongful’ in the circumstances set out in Art 3 of the Convention: reg 2(2). In essence, Art 3 says that removal or retention is wrongful where it is in breach of someone’s ‘rights of custody’ in relation to the child under the laws of the place from where the child was removed. Those rights may be joint or sole; however, the person must actually have been exercising those rights prior to the removal/retention. Following the reforms in 1996 and 2006, under which the concepts of custody and access were abolished and replaced with a more general concept of ‘parental responsibility’, amendments were also made to s 111B of the FLA dealing with the Child Abduction Convention. To resolve any doubt as to the implications of the changes effected under those two rounds of reform, s 111B(4) explains the circumstances in which a person under Australian family law has rights of custody of, or access to, a child for the purposes of the Convention. The terms of that section make the situation relatively clear in Australia. For

example, a parent with any degree of parental responsibility has ‘rights of custody’: s 111B(4)(a). However, the matter is not always so clear in relation to the laws of other countries. Under reg 4(1)(b) it must be determined whether ‘rights of custody in relation to the child are attributed to the person … under a law in force … in the convention country’.439 The term ‘rights of custody’ is defined in reg 4(2): ‘rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.’ Case law has established that this term should be given a broad interpretation in line with the purpose of the Convention, and not restricted by specialist domestic terminology.440 The term was considered in Re J & Director-General, Department of Community Services,441 where [page 539] the Full Court described the definition in reg 4 as ‘somewhat unsatisfactory’. In this particular case, the father sought to have the child returned to the United States. The Full Court held that ‘rights of custody’ under reg 4(2) ‘must include the right to determine where the child [is] to live’.442 A parenting order had been made in Georgia; however, after detailed consideration of the law in that jurisdiction, it was concluded the father had no more than a right to be consulted on this matter, with the mother having the right to make the final decision. As a consequence, the removal by the mother of the child was not wrongful. This case emphasises that the Central Authority, which bears the onus of establishing the removal or retention is wrongful, must pay close attention to the precise nature of the orders in the foreign jurisdiction443 and that what may amount to rights of custody in Australia, will not necessarily qualify in other Convention countries.

8.154 The court will also have to decide whether the child was ‘habitually resident’ in the place from which they were removed. This term was considered by the High Court in LK v DirectorGeneral, Department of Community Services.444 After noting that the term has no technical definition and is a question of fact, their Honours made two points: First, application of the expression ‘habitual residence’ permits consideration of a wide variety of circumstances that bear upon where a person is said to reside and whether that residence is to be described as habitual. Secondly, the past and present intentions of the person under consideration will often bear upon the significance that is to be attached to particular circumstances like the duration of a person’s connections with a particular place of residence.445

Their Honours also approved446 the following statement from the New Zealand Court of Appeal in Punter v Secretary for Justice:447 Such an inquiry should take into account all relevant factors, including settled purpose, the actual and intended length of stay in a state, the purpose of the stay, the strength of ties to the state and to any other state (both in the past

[page 540] and currently), the degree of assimilation into the state, including living and schooling arrangements, and cultural, social and economic integration. In this catalogue, SK v KP [2005] 3 NZLR 590 held that settled purpose (and with young children the settled purpose of the parents) is important but not necessarily decisive. It should not in itself override what McGrath J called at [22], the underlying reality of the connection between the child and the particular state.448

Their Honours went on to say that this term is deliberately different from the concept of ‘domicile’. A person will normally have only one ‘habitual residence’; however, they may be nomadic and have none. A child can only be ‘habitually resident’ in a place in which they have lived ‘for an appreciable period’.449 This undefined term has been satisfied by a period as short as one month.450 8.155

The effect of the regulations is that, subject only to reg

16(3) (grounds on which a court may refuse to make an order for the return of the child), the court must order the return of a wrongfully removed/retained child where the application was filed within one year after the day on which the child was removed or first retained in Australia: reg 16(1). Where a child is wrongfully removed or retained, but the application for return is not filed within 12 months, the court must order the child’s return unless the court is satisfied that the child is ‘settled in his or her new environment’: reg 16(2). The phrase ‘settled in his or her new environment’ was considered in Marriage of Graziano & Daniels.451 The Full Court held that the test must be more exacting than that the child is happy, secure and adjusted to their surrounding circumstances: in the court’s view, the word ‘settled’ has a physical element of relating to, or being established in, a community and an environment, as well as an emotional element denoting security and stability. It was held that the relevant environment was not constituted by the mother alone — the relevant environment is a community in a geographically defined place, and in order for the child to be settled, that environment must have attained significance for the child. Confirming the approach taken in Gsponer v Johnstone,452 it was held that [page 541] the burden of establishing that the children are ‘settled in their new environment’ must rest on the party opposing their return. Later Full Courts, however, have resiled to an extent from the position taken in Graziano on the meaning of the word ‘settled’: see Director-General, Department of Community Services v M & C453 (referring to the High Court case of De L v Director-General, New South Wales Department of Community Services)454 and then Townsend v Director-General, Department of Families, Youth and Community Care.455 In the latter case it was said that ‘[t]he test,

and the only test to be applied, is whether the children have settled in their new environment’.456 Although both sides in this case agreed that ‘settled’ should be given its ordinary meaning, the question was whether the oft-quoted passage from Graziano did, in fact, depart from this simplified test. The Full Court held Graziano did add an unacceptable gloss: In our view, while the above-quoted passage from Graziano draws attention to some relevant matters, it has the potential to mislead, in two respects. First, the notion that the abductor ‘must establish the degree of settlement which is more than mere adjustment to surroundings’ suggests that there are degrees of settlement, only some of which satisfy the legislative requirement. It thereby suggests a more exacting test than the regulation actually requires. It may also be taken to imply that matters which would demonstrate adjustment to the environment are somehow irrelevant or to be discounted. The suggested contrast with ‘mere adjustment to surroundings’ thus tends in our view to complicate the issue and distract the court from the task of determining whether the child is settled in his or her new environment. Second, it could be misleading to say that ‘settled’ has two constituent elements, one physical and one emotional. While the various matters mentioned in the quoted passages are undoubtedly relevant, the analysis of the term into those two distinct components is unhelpful in our view. There are numerous ways in which the various relevant matters could be categorised. One might, for example, include ‘educational’ as a separate category. The two-component categorisation adopted in Graziano might lead trial judges to approach the task in a way different from that required by the words of the Act. It could, especially in finely-balanced cases, affect the weight to be attached to various matters.457

[page 542] In Department of Family & Community Services & Raho,458 Le Poer Trench J formulated the following list of matters relevant to determining if a child is settled in their new environment: Are the children apparently content in their current environment (an objective observation)? What are the children’s subjective views of their current circumstances? What weight might the Court give to the children’s stated views?

Has the mother established a stable physical and financial environment for the children? To what extent are the children embedded in their current community (school, supports, friends, extracurricular activities)? The nature and circumstances of each child which may impact upon an assessment of whether the child is ‘settled’.459 A question that has arisen in the context of late applications for return is whether the court has a discretion to order the return of the child when the child is settled in the new environment (and of course, the exceptions set out in reg 16(3) are not made out). As Le Poer Trench J outlined in Attorney-General’s Department & McGaffey,460 the authorities in this area are not consistent and there is no definitive statement from the Full Court. His Honour, like Lindemayer J in Attorney-General, Department of Family, Youth and Community Care & Thorpe,461 concluded that such a discretion did exist under reg 15(1), commenting however in another case that he imagined the facts in most cases would lead to a decision not to return the child.462 Conversely, Kay J (in State Central Authority v Ayob463 and SCA & CR)464 and Bennett J (in State Central Authority & Hajjar)465 have expressed the opposite view as to the existence of such a discretion; that is, if the application is filed after the 12-month period, and the child is well settled, then their Honours argue there is no discretion for the court to order the child’s return. However, [page 543] the Full Court in Director-General, Department of Community Services v M & C,466 having considered Kay J’s conclusion on the matter, observed that they ‘were not necessarily persuaded that … [this] view is correct’. 8.156

In practice, the interpretation of the exceptions to the

court’s obligation to order the return of the child (found in reg 16(3)) has been the most litigated area. Regulation 16(3) provides five grounds that permit the court to refuse to return the child. The person opposing the return bears the onus of proof. It is clear from the terms of this regulation that the power to refuse return is discretionary, though there are no statutory guidelines as to how that discretion should be exercised.467 The first ground is where the rights of custody were not being exercised before the child’s removal or wrongful retention (and would not have been exercised): reg 16(3)(a)(i). As to the interpretation of this regulation and whether the person making the application for return of the child was actually exercising rights of custody when the child was wrongfully removed or retained, see Director General, Department of Community Services v Crowe,468 where it was held that the mother was exercising rights of custody even though the children had been in the care of their grandparents. The second ground is where the person seeking the child’s return either consented, or subsequently acquiesced, to the removal or wrongful retention: reg 16(3)(a)(ii). For an example of the application of this provision, see Director-General, Department of Child Safety v Milson.469 8.157 The third ground arises where ‘there is a grave risk that return of the child … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’: reg 16(3)(b). While these words are not defined, Gleeson CJ in DP v Commonwealth Central Authority470 indicated that the words ‘or otherwise place the child in an intolerable situation’ assist in understanding what was contemplated as to the nature and degree of physical or psychological harm required to satisfy this exception. In some early cases,471 the Family Court took the view that it would be inappropriate for it to assume that a child would not be

properly protected by the courts of the other country on its return. However, in Cooper & Casey472 there [page 544] was some acknowledgment of a problem with the operation of the Convention in that it is not the practice of receiving states to accept direct responsibility for the welfare of children after their return. Nicholson CJ, with whom Kay and Graham JJ agreed, urged receiving states to accept a more positive obligation for the welfare of children returned, suggesting that such an obligation can be found in Art 7 of the Child Abduction Convention. There has since been considerable judicial discussion of the meaning of the words in reg 16(3)(b).473 In DP v Commonwealth Central Authority474 (heard together with JLM v Director-General, New South Wales Department of Community Services), the mother, a Greek-born Australian citizen, had returned with the child to Australia after separating from the Greek father, the child having been born and raised in Greece. The child was diagnosed with autism in Australia and the mother argued ‘grave risk’, on the basis that returning the child to the father’s village would mean necessary treatment services would not be available to the child. The mother was unsuccessful both at first instance and on appeal to the Full Court. A majority of the High Court held that the phrase ‘grave risk’ was not to be given either a narrow or a wide meaning, but rather the meaning demanded by the words themselves.475 Due to the predictive nature of the exercise, ‘clear and compelling evidence’ of a ‘grave risk of exposure to future harm’ is required.476 At the time of this decision, reg 16(3)(b) referred specifically to the return of the child to the country in which they habitually resided before the removal. The High Court held that although the regulation did not refer to the return of the child to a place or person, the court must consider the practical consequences of a

return.477 The regulation has now been amended to read ‘return of the child under the Convention’, which makes it clear that it is the consequences of the return that must be assessed when considering this exception. The High Court also held that, in terms of psychological harm, it was necessary to show more than distress on the part of the child at being returned.478 The mother’s appeal in this case was upheld on the bases that the Full Court erred in applying a narrow construction to the words of this regulation, and that the trial judge erred in finding the evidence established no grave risk. However, on rehearing, the child was returned to Greece.479 [page 545] A more recent Full Court decision, Wolford & Attorney-General’s Department (Cth),480 has cited with approval the following comments in the UK Supreme Court decision Re E (children) (abduction: custody appeal):481 … the risk to the child must be ‘grave’. It is not enough, as it is in other contexts such as asylum, that the risk be ‘real’. It must have reached such a level of seriousness as to be characterised as ‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as ‘grave’ while a higher level of risk might be required for other less serious forms of harm.482

In the companion decision to DP v Commonwealth Central Authority (a special leave application), JLM v Director-General, New South Wales Department of Community Services, the mother successfully restrained the return of a child to Mexico at first instance on the basis that there was a serious risk of the mother committing suicide if an order for return were made. On appeal, the Full Court overturned the decision on the basis that the evidence in fact showed that the risk of suicide arose from the possibility of an adverse decision if the parenting dispute were to be heard in Mexico. Obviously, there is a concern in cases such as

these that threats will be made to subvert the objective of the Convention, which is to have the matter determined in the child’s place of habitual residence.483 The High Court granted leave and upheld the mother’s appeal. Their Honours held that: To say that she is the originator of the source of the risk of harm appears to take no account of the fact that the mother is not in command of her situation and it betrays a complete lack of any understanding of the major depressive illness from which she suffers.484

The matter was remitted to the Full Court for a rehearing which, consistent with the High Court’s finding, found the trial judge had not erred and so dismissed the original appeal.485 [page 546] In Genish-Grant v Director-General, Department of Community Services,486 the two children in question had lived in Israel for about four-and-a-half years with their Australian-born mother and Israeli-born father. Having obtained the father’s consent to take the children to Australia for three months, the mother remained in Australia with the children. O’Ryan J held there was no risk to the children in returning them to Israel. On appeal, the mother relied on a government travel warning (issued after the first hearing) advising all Australians to defer travel to Israel. A majority of the Full Court considered that the travel warning did amount to clear and compelling evidence of a grave risk487 and noted that in relation to countries at war or subject to civil unrest, it was not necessary to show that the child in question was at any greater risk than any other person in the country. The fact that, at first instance, it had been found that the mother had no intention of returning to Israel when she left highlights that the exception relates to the circumstances of the child, not the parent’s motivations. The approach taken to the interpretation of reg 16(3)(b) has given rise to some criticism, particularly from women’s groups

who seek to protect female victims of violence.488 These concerns were long ago outlined in the report of the Australian Law Reform Commission, Equality Before the Law:489 see 9.34. In light of the strict interpretation of the regulations adopted by the court, the Commission recommended that reg 16 be amended to provide that in deciding whether there is a grave risk that the child’s return would expose the child to physical or psychological harm or an intolerable situation, regard may be had to the harmful effects on the child of past violence or of violence likely to occur in the future towards the abductor by the other parent if the child is returned: Recommendation 9.5. It was further recommended that the regulations should provide that the child should not be returned if there is a reasonable risk that to do so will endanger the safety of the parent who has care of the child. This recommendation was not acted on.490 Bennett J, in State Central Authority & Young,491 has said the following in relation to family violence and the ‘grave risk’ exception: Allegations of family violence … rarely provide an exception to mandatory return because … the court will ordinarily assume that the courts of the requesting state

[page 547] will be capable of protecting a returning child (and the child’s returning parent). As stated in Murray & Director Family Services (ACT) … absent evidence to the contrary, for the court to do otherwise would be ‘presumptuous and offensive in the extreme’ and would tend to thwart the principal purpose of the Hague Convention. However, where cogent evidence to the contrary is before the court, the assumption will not be made and the court will make an assessment of the extent to which protective measures can be put in place to adequately safeguard the returning child and, if applicable, the returning parent …492 … [T]he evidentiary onus [to establish the inability of the returning jurisdiction to provide protection] does not rest solely on the [party] who asserts the grave risk of harm or the intolerable situation … [R]esponsibility to adduce evidence can differ as between litigants depending on the respective capacities of the litigants to adduce evidence …493 … The majority in DP & Commonwealth Central Authority; JLM v Director-General

NSW Department of Community Services … observed, inter alia, that once the capacity of a state to make adequate arrangements for a returning child is raised, consideration must be given to the consequences of the mandatory return and what arrangements can, if fact, be made.494

For a very thorough discussion of the case law on how past family violence495 perpetrated in the child’s place of habitual residence relates to the assessment of ‘grave risk’ in reg 16(3)(b), see Zafiropoulos v Secretary of the Department of Human Services State Central Authority.496 Contrast the outcome in that case (where the risk of violence on returning to Greece was not sufficient to trigger the exception) with the decision in McDonald v Director-General, Department of Community Services, New South Wales.497 In the latter case, it was found that the mother had suffered post-traumatic stress disorder as a result of the violence to which she was subjected by the father, and there was a danger it would resurface if she and the child were sent back. This triggered the exception; however, the exception is discretionary, and the trial judge was of the view that protection could be provided by ordering that certain conditions be met (as is provided for under reg 15). On this basis, the order for return was made. On appeal, the Full Court held that where conditions are to be attached so as to avoid the ‘grave risk’, those conditions ‘need to be clearly defined and be capable of being objectively measured as to whether or not the conditions have been fulfilled’.498 The appeal was successful, as the conditions in this case did not meet these criteria. [page 548] Department of Community Services & Frampton499 provides an example of appropriate conditions being attached to protect a child on return, though in a rather different context. In this case, a Kenyan mother lost her visa to remain in the UK, nearly two years after she separated from the father of the parties’ child, L. The mother returned to Kenya with L and, as it was clear she would not be granted a visa to return to the UK, she asked the

father to sign divorce papers so she could marry her new Scottish partner and move to Scotland. The father refused, apparently saying ‘[e]njoy your life in Kenya’. The mother then moved to Australia with L, and at this point the father sought the return of the child to the UK. It was agreed that there would be a grave risk to L if the mother was not able to return with her. The trial judge was not satisfied that appropriate conditions could be crafted, but the Full Court disagreed, outlining the minimum conditions required here: It seems to us essential that the mother have the legal ability to enter and stay in the United Kingdom pending the outcome of anticipated proceedings about L’s future parenting. It further appears essential considering the mother’s financial position, that the means of transporting L and the mother to the United Kingdom be provided. Finally it seems essential that some financial arrangement be made to ensure the mother and child have the ability to find accommodation upon their arrival, and have provision for their day to day living expenses, at least until an application for support can be made by the mother to an appropriate court.500

In 2010 the Australian Law Reform Commission released another major report on family violence and the law,501 and again addressed the issue of the application of this defence in cases where family violence has been established. The Commission noted the outcome of a UK study which found that in all six cases in the study where a non-molestation order was made in an abduction case, the order was broken after return to the place of habitual residence.502 The Commission affirmed the recommendations made in its earlier Equality Before the Law report.503 8.158 The High Court has also had to consider the interpretation of the words in the fourth ground for a court refusing to return a child (reg 16(3)(c)): ‘the child objects to being returned’ and ‘has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views’. Originally, the [page 549]

regulation said nothing about how strongly held the objection had to be to trigger the exception. Accordingly, in De L v Director General, New South Wales Department of Community Services,504 the High Court held there was ‘no particular reason why reg 16(3)(c) should be construed by any strict or narrow reading’ of the phrase ‘the child objects to being returned’; no form of words had been employed ‘which would supply, as a relevant criterion, the expression of a wish or preference or of vehement opposition’. Their Honours went on to note the desirability of reports in such cases and the need for separate representation of children.505 However, since this decision, reg 16(3)(c)(ii) has been enacted (note also FLA s 111B(1B)). This provision, which only permits consideration of children’s objections that import ‘a strength of feeling beyond the mere expression of a preference or of ordinary wishes’, was considered in Re F (Hague Convention: Child’s Objections).506 Here, a nine-year-old boy was taken by his mother from the United States to Australia in August 2003 and retained there without the father’s consent. In August 2004 it was ordered that the boy be returned to New Orleans. However, for reasons canvassed in the decision (not the least of which was Cyclone Katrina), that did not happen. By the time the father tried to remove the child from Australia, the child had developed an implacable opposition to leaving Australia and refused to board the plane. The trial judge found that the boy did not object to being returned, but rather to leaving his mother (perhaps being under the mistaken impression that he was being moved to the permanent care of his father). After discussing the difficulty in establishing precisely what had to be objected to,507 the Full Court held that, in the case at hand, the precise basis of the objection was not the key factor, as it was perfectly clear that this now 12year-old child had an extremely strong objection to being forced to go back with his father. Prior to this decision, it had been held that the objection of the child had to be to returning to the other country, not to leaving the care of the parent who abducted them.508 However, the Full

Court had qualified this finding in De L v Director General New South Wales Department of Community Services by saying that ‘there may be cases “where the two factors are so inevitably and inextricably linked that they cannot be separated”’.509 As the discussion in Re F highlights, this might seem to give abductors an advantage if they can delay an action for return of the child. In spite of this, the decision in Re F affirmed that the child’s [page 550] objection is not to be overridden on the basis that this will unfairly reward the abducting parent.510 The exception based on a child’s objection will only apply where the child has ‘attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views’. Zafiropoulos & Secretary of the Department of Human Services State Central Authority511 provides an example where the strong objection of a very mature child aged just under eight was held to fall outside the exception, on the basis of the child’s young age. 8.159 The final ground for a court refusing to return a child (reg 16(3)(d)) is more general: ‘the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms’ do not permit the return of the child. This does not appear to be frequently relied on.512 8.160 The Child Abduction Convention only applies where a child has been removed to, or retained in, an overseas country that has ratified the Convention. There had, however, been cases where it had been strongly suggested that the influence of the Convention should extend to non-Convention countries.513 In reaching this conclusion, support had been expressed for the general principle of forum non conveniens based on the High Court

authority of Voth v Manildra Flour Mills Pty Ltd,514 which was applied by the Family Court in Marriage of Gilmore.515 In ZP v PS; Re PS, Ex parte ZP,516 the High Court addressed the question of the significance of the Convention in respect of nonConvention countries. The case concerned the removal of a child from Greece by his mother in breach of a custody order made in her favour by a Greek court. At the time of the removal, Greece was not a party to the Convention. An appeal had been brought from orders made at first instance requiring the parties to submit themselves to a Greek court of competent jurisdiction for the purpose of determining the child matters at issue. The Full Court of the Family Court (Kay and Graham JJ, Nicholson CJ [page 551] dissenting) had dismissed the appeal, in spite of objections raised by the wife that she would be unable to return to Greece. By a majority (Brennan and Dawson JJ, and Deane and Gaudron JJ, delivering two separate joint judgments; Mason CJ, Toohey and McHugh JJ dissenting), the High Court allowed the appeal. Although the court was divided as to the ultimate decision, there was agreement on a number of propositions. All members of the court supported the conclusion that in international child abduction cases falling outside the Convention, the welfare of the child is the paramount consideration: the test of ‘clearly inappropriate forum’ developed in the administration of the principle of forum non conveniens was not an alternative test to the welfare of the child, and Family Court authorities to the contrary must be overruled. While there was general support among members of the court for the proposition that it is legitimate to take account of the policy underlying the Hague Convention in non-Convention cases, the justices were of the view that the importance previously

given to that factor by the Full Court was too great. The issue of the policy of the Convention was most fully canvassed in the joint judgment of Brennan and Dawson JJ where they had this to say: The policy of the Convention is not a factor which can displace the paramount consideration of welfare. It is only if welfare factors be evenly balanced that secondary considerations — such as the policy of discouraging the abduction of children across national borders or the desirability of the determination of permanent custody being made in the child’s ordinary place of residence — can have any weight in guiding the exercise of the Family Court’s powers.517

Endorsing the approach taken by Nicholson CJ, a majority of the court (Brennan, Deane, Dawson and Gaudron JJ) held that the issue of the wife’s non-return was of central importance to the future welfare of the child and, as this had not been addressed, it was necessary to refer the matter back to a judge of the Family Court to make such orders as were in the best interests of the child. This decision applies to cases where a child is wrongfully abducted from another jurisdiction and brought into Australia, and the application seeks the return of the child to that other jurisdiction; where the application is to stay proceedings brought in Australia, see EJK v TSL518 and the cases referred to therein.

1.

Further detail on the history of reforms to Pt VII can be found in the seventh edition of this book: L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [8.7]–[8.20].

2.

See P Alston, ‘Foreword’ in P Alston and G Brennan (eds), The UN Children’s Convention and Australia, Human Rights and Equal Opportunity Commission, ANU Centre for International and Public Law, Canberra, 1991, p iii. Australian Human Rights Commission Act 1986 (Cth) s 46MB.

3. 4. 5.

Ibid. See Australian Human Rights Commission, Information Concerning Australia and the Convention on the Rights of the Child: Australian Human Rights Commission Submission to the Committee on the Rights of the Child, August 2011, available at www.hreoc.gov.au/legal/index (accessed 25 April 2012); United Nations Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Concluding Observations, Australia, CRC/C/Aus/CO/4, 28 August 2012, available at www2.ohchr.org (accessed 24 April 2016); J Tobin, ‘The Development of Children’s Rights’ in G Monahan and L Young (eds), Children and the Law in Australia, LexisNexis Butterworths, Sydney, 2008, pp 29–31.

6. 7.

(1997) 21 Fam LR 676; FLC ¶92-755. (1997) FLC ¶92-755 at [6.45].

8. 9.

Ibid at [10.19]. Ibid at [10.27].

10. 11.

(2003) 30 Fam LR 181; FLC ¶93-141. D Bryant, ‘Care and Protection of Children: Australian and New Zealand Experience’, Paper delivered at 4th World Congress on Family Law and Children’s Rights, Cape Town, South Africa, March 2005, pp 20–1.

12. 13.

(2004) 31 Fam LR 339; FLC ¶93-174. D Bryant, ‘Care and Protection of Children: Australian and New Zealand Experience’, Paper delivered at 4th World Congress on Family Law and Children’s Rights, Cape Town, South Africa, March 2005, p 21.

14.

L Ruddle and S Nicholes, ‘B and B and the Minister for Immigration and Multicultural and Indigenous Affairs: Can International Treaties Release Children from Immigration Detention Centres?’ (2004) 5(1) Melbourne Journal of International Law 256 at 257. For consideration of the influence of the Convention in other areas, see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353. See also ‘The High Court’s Decision in Minister of State for Immigration and Ethnic Affairs v Teoh and the Government’s Response’ (1995) 9 Australian Journal of Family Law 89. Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth), House of Representatives, 2011, [23].

15. 16. 17.

[2013] FamCAFC 110 at [120]. Ibid at [134].

18.

Family Law Council, Access — Some Options for Reform, AGPS, Canberra, 1987, [1.1].

19. 20.

Family Law Council, Patterns of Parenting after Separation, AGPS, Canberra, 1992. Australian Law Reform Commission (ALRC), Report No 57, Multiculturalism and the Law, AGPS, Canberra, 1992; Commonwealth of Australia, The Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975, AGPS, Canberra, 1993; Commonwealth of Australia, Family Law Act 1975 Directions for Amendment: Government Response to the Report by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975, AGPS, Canberra, 1993; Family Law Council, Letter of Advice to the AttorneyGeneral on the Operation of the (UK) Children Act 1989, March 1994.

21.

See also R Bailey-Harris, ‘The Family Law Reform Act 1995 (Cth): A New Approach to the Parent/Child Relationship’ (1996) 18 Adelaide Law Review 83 at 84. House of Representatives, Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, CanPrint, Canberra, 2003.

22.

23. 24. 25.

26.

27. 28.

J Howard, ‘Framework Statement on Reforms to the Family Law System’, Media Release, 29 July 2004, available at www.aph.gov.au (accessed 13 July 2012). B Fehlberg et al, ‘Legislating for Shared Time Parenting after Separation: A Research Review’ (2011) 25(3) International Journal of Law Policy and the Family 318 at 329. For a summary of key findings of the major reports, see D Higgins and R Kaspiew, Child Protection and Family Law … Joining the Dots, National Child Protection Clearinghouse, Issues Paper No 34, 2011. L Young, ‘Australia: Reflections on the Shared Parenting Experience’ in B Atkin (ed), International Survey of Family Law 2012 Edition, Jordans Publishing, Bristol, 2012, p 1. For further discussion of these provisions, see L Young and G Monahan, Family Law in Australia, 7th ed, Sydney, LexisNexis Butterworths, 2009, [16.6]. However, because the relevant provisions of the Family Court Act 1997 (WA) apply to children not of a marriage, and because those provisions are essentially the same as those found in the FLA, the practical significance of this is limited (eg it affects where appeal paths lie).

29. 30.

See OHB & MTM (2007) FLC ¶93-338. As to whether the Family Court can join the state/territory to parenting proceedings and make parenting orders giving a child up into state care without the consent of the state, see Secretary of Department of Health and Human Services and Ray (2010) FLC ¶93-457. This decision also discusses the meaning of some of the phrases in s 69ZK.

31.

32.

The inclusion of a provision relating to protection from harm followed a recommendation in Family Law Council, Letter of Advice to the Attorney-General, Review of Div 11 — Family Violence, 16 November 2004. See, in particular, Arts 2, 7, 9.3 and 18 of the Convention.

33. 34.

B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 729; FLC ¶92-755. See ss 1, 2.

35.

See, for example, Lord Scarman in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402 at 420–1.

36. 37.

[2013] FamCAFC 53. Ibid at [40]–[41].

38. 39.

Director-General of the Department of Human Services & Tran (2010) 44 Fam LR 1; FLC ¶93-433 at [194] per Boland J. (2010) FLC ¶93-433 at [199].

40. 41.

Section 61C(1). Section 61C(2).

42.

43.

See J Dewar, ‘The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared — Twins or Distant Cousins?’ (1996) 10 Australian Journal of Family Law 18 at 27. (1997) 21 Fam LR 676; FLC ¶92-755.

44. 45.

(1997) FLC ¶92-755 at [9.29]–[9.30]. Vlug v Poulos (1997) 22 Fam LR 324 at 336; FLC ¶92-778.

46. 47.

J Dewar and S Parker, ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 Australian Journal of Family Law 96 at 109. (2006) 36 Fam LR 422; FLC ¶93-286 at [37].

48. 49.

See, for example, Mellick & Mellick [2014] FamCAFC 236 at [49]–[50]. [2013] FamCA 144.

50. 51.

Ibid at [38]. See, for example, L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [7.31].

52. 53.

(1997) 21 Fam LR 676; FLC ¶92-755. Re Agar v Ellis (1883) 24 Ch D 317.

54. 55.

[1970] 1 QB 357. [1985] 3 All ER 402.

56. 57.

M Freeman, ‘England: The Trumping of Parental Rights’ (1986–87) 25 Journal of Family Law 91 at 92. (1992) 15 Fam LR 392 at 401; FLC ¶92-293 per Mason CJ, Dawson, Toohey and Gaudron JJ. See also A & A (1981) 7 Fam LR 439; FLC ¶91-070 and J v Leishke [1987] ALJR 143 at 147–8 per Brennan J for earlier support for this view in Australia.

58. 59.

Former s 63F; see now s 61C, dealing with the scope of parental responsibility. (1992) 15 Fam LR 392 at 441.

60. 61.

[1991] 4 All ER 177. [1992] 4 All ER 627.

62. 63.

(1992) 15 Fam LR 392 at 401. Ibid at 458.

64. 65.

(2003) 30 Fam LR 181; FLC ¶93-141. (2003) FLC ¶93-141 at [376]–[379].

66.

(1992) 15 Fam LR 392 at 401.

67. 68.

[2013] FamCAFC 110 at [120]. This condition was previously often referred to as ‘gender identity disorder’.

69. 70.

[2013] FamCAFC 110 at [108]. Ibid at [137].

71. 72.

Though this is surely hard to know in any event, as it will be impossible to know what would have happened if the treatment had not been undertaken. (1995) 18 Fam LR 788; FLC ¶92-598.

73. 74.

[1992] 4 All ER 627. (1995) 18 Fam LR 788 at 800.

75. 76.

[2013] FamCAFC 110 at [134]–[135]. Ibid at [140].

77. 78.

VR v RR (2002) 29 Fam LR 39 at 44; FLC ¶93-099. See also W & G (No 2) (2005) 35 Fam LR 439; (2005) FLC ¶93-248 at [123]. See s 63DB(2).

79. 80.

See s 63DB(3). See s 63DB(4) and (5), and s 63E.

81.

A further effect of this is that penalties for contraventions do not apply to parenting plans: see the terms of Div 13A. For an example of the impact of ambiguity in a parenting plan, see Morgan v Miles (2007) 38 Fam LR 275; FLC ¶93-343.

82. 83. 84. 85.

See ss 66F(1)(ba), 67K(1)(ca) and 67T(ca), which now all include specific reference to grandparents. [2009] FamCAFC 229; (2009) FLC ¶93-421.

86.

Note that in Carlton & Bissett [2013] FamCA 143, Ryan J commented in obiter that it was not clear whether the term ‘parent’ in this section meant biological or legal parent: see Chapter 7 on the complexities of the meaning of the term ‘parent’ when used in the FLA. (2004) FLC ¶93-198.

87. 88.

Green-Wilson & Bishop [2014] FamCA 1031. For more detail on earlier versions of Div 5, see previous editions of this book.

89. 90.

See s 64B(4) in relation to the meaning of ‘communication’. [2014] FamCAFC 149 at [162]–[165].

91. 92.

[1999] FamCA 1699 at [51]. [2015] FamCAFC 43 at [59]–[61].

93.

Inserted by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). See Tryon v Clutterbuck (2007) 211 FLR 1; FLC ¶93-332 and then Brianna v Brianna (2010) 43 Fam LR 309; FLC ¶93-437. Though note the decision in Green-Wilson & Bishop [2014] FamCA 1031, where the judge continued to refer to this ambiguity, despite the amendment to the section in 2012.

94.

95. 96. 97. 98.

See s 70NCA and the definitions in s 4(1) of ‘primary order’ and ‘order under this Act affecting children’. For examples where the requirement was waived, see King v Phanphumong [2010] FamCA 1206; Irving & Tatupa [2013] FamCA 358. [2012] FamCA 129. Note the discussion of this practice in the Family Law Council report, Improving the Family Law System for Aboriginal and Torres Strait Islander Clients, AGPS, Canberra, 2012, [5.10], available at www.ag.gov.au (accessed 23 May 2012).

99. See, for example, Dudley v Chedi [2011] FamCA 502. 100. (2010) 44 Fam LR 376; FLC ¶93-459. 101. (2010) FLC ¶93-459 at [63]. 102. Ibid at [90]. 103. (1997) 21 Fam LR 676; FLC ¶92-755. 104. (1997) 21 Fam LR 676 at 731–2. 105. Note that the court can, at any time, order the parties to attend counselling: FLA s 13C(1). 106. Apparently such orders are not frequently made: CCH, Family Law and Practice, [14225]. 107. See the comment of Tree J in Spanos & Hallett [2015] FamCA 458 at [137]. 108. See s 4(1) for the definition of a ‘post-separation parenting program’. 109. Originally the FLA referred to the ‘welfare’ of the child as the paramount consideration. This was changed to the current formulation in the 1996 reforms. There is no legal significance to the change in terminology: Re Z (1996) 20 Fam LR 651; FLC ¶92-694. See also B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 730; FLC ¶92-755. 110. Section 65DA(2). The term ‘family violence’ is defined in s 4AB(1). 111. (1983) 8 Fam LR 1029; FLC ¶91-337. 112. (1976) 1 Fam LR 11,203; FLC ¶90-041. 113. (1976) 1 Fam LR 11,203 at 11,206. 114. This is in line with the general position that when a judge exercises a statutory discretion, a precedent is not created. 115. (1976) 5 Fam LR 796; FLC ¶90-024. 116. (1976) 5 Fam LR 796 at 797. 117. For example, Mathieson & Mathieson (1977) FLC ¶90-230; Marriage of Hall (1979) 5 Fam LR 609; FLC ¶90-679; Brown & Brown (1979) 6 Fam LR 352; (1980) FLC ¶90875. 118. Marriage of Raby (1976) 2 Fam LR 11,348; FLC ¶90-104. 119. Marriage of Kress (1976) 2 Fam LR 11,330; FLC ¶90-126. 120. Free Press, New York, 1973. 121. Ibid, p 63. 122. H Rhoades, ‘Revising Australia’s Parenting Laws: A Plea for a Relational Approach to

Children’s Best Interests’ (2010) 22 Child and Family Law Quarterly 172. For further discussion of alternatives to the paramountcy principle, see ibid at 180–3 and the references therein. 123. Aldridge v Keaton (2009) 42 Fam LR 369; FLC ¶93-421 at [62]; Donnell v Dovey (2010) 42 Fam LR 559; FLC ¶93-428 at [121]–[122]. 124. (2006) 36 Fam LR 422; FLC ¶93-286. 125. See R Chisholm, Family Courts Violence Review: A Report by Professor Richard Chisholm, Australian Government Attorney-General’s Department, Canberra, 2009, p 120; R Kaspiew et al, ‘The AIFS Evaluation of the 2006 Family Law Reforms’ (2011) 86 Family Matters 8 at 14. 126. [2013] FamCA 144 at [25]. 127. Ibid at [24]–[29]. 128. Ibid at [24]. 129. Leaving aside those cases decided by Watts J, see for example Dunst & Dunst [2014] FamCA 964 at [134] per Austin J and Roth & Roth [2014] FamCA 207 at [67] per Loughnan J. 130. See Doherty & Doherty [2014] FamCAFC 20 at [35], where the Full Court noted that the trial judge was not correct in saying the presumption could be rebutted in the case of violence; rather, the presumption was ‘inapplicable’ in such cases. 131. Elspeth v Peter [2006] FamCA 1385 at [30]. 132. (2006) 36 Fam LR 422 at [78]; FLC ¶93-286. See also Gainforth v Gainforth [2012] FamCAFC 24 at [18]–[19] as to the interaction of s 61DA(2) and (3). 133. (2010) 43 Fam LR 348. 134. Ibid at [107]. 135. Elspeth v Peter [2006] FamCA 1385 at [32]. 136. Goode & Goode (2006) 36 Fam LR 422; FLC ¶93-286 at [13]. 137. That a positive answer is required to both before turning to the third was confirmed by the High Court in MRR v GR (2010) 240 CLR 461; 42 Fam LR 531 at [13]. Of course, if the court finds that equal shared physical care is not in the best interests of the child, it does not need to consider whether, in fact, that would be practicable: Taylor v Barker (2007) 37 Fam LR 461; FLC ¶93-345 at [73]–[74]. 138. (2006) 36 Fam LR 422; FLC ¶93-286 at [64]. 139. (2010) 240 CLR 461; 42 Fam LR 531 at [15]. 140. [2010] FamCAFC 53 at [374]–[382]. 141. Ibid at [46]–[47]. 142. (2007) 37 Fam LR 461; FLC ¶93-345 at [62]. 143. (2007) FLC ¶93-345 at [63]. 144. [2010] FamCAFC 53 at [140]. 145. See ss 60CA, 63H(2), 65L(2), 67L, 67V, 67ZC(2), 69ZX(4) and 70NBA(2). See also sections such as ss 70NDB(2) and 70NEB(5), which prohibit the making of an order where it is not in a child’s best interests to make the order. 146. For example, s 68S(1)(e).

147. (1995) 19 Fam LR 108; FLC ¶92-617. 148. (1993) 16 Fam LR 452; FLC ¶92-373. 149. Hutchings was distinguished in Marriage of Day (1994) FLC ¶92-505. 150. (1992) 16 Fam LR 601; (1993) FLC ¶92-351. 151. (1996) 20 Fam LR 743; FLC ¶92-708. 152. (1999) 24 Fam LR 253; FLC ¶92-838. 153. Australian Law Reform Commission (ALRC), Issues Paper 28: Review of the Evidence Act 1995, AGPS, Canberra, 2004, [15.65]. 154. Inserted in 2007 by the Evidence Amendment (Journalists’ Privilege) Act 2007 (Cth). 155. (1998) 23 Fam LR 755; FLC ¶92-828. 156. (1998) 23 Fam LR 755 at 773. 157. (2003) 31 Fam LR 7 at 15; FLC ¶93-136. 158. (2003) 31 Fam LR 7 at 17. 159. (2010) 43 Fam LR 309; FLC ¶93-437. 160. (2010) FLC ¶93-437 at [92]. See also the discussion of Finn and Thackray JJ at [151]– [158]. 161. Ibid at [159]. 162. Family Law Council, The ‘Child Paramountcy Principle’ in the Family Law Act, AGPS, Canberra, 2004, p 31. 163. Australian Law Reform Commission (ALRC), ALRC Discussion Paper 69, Review of the Uniform Evidence Acts, AGPS, Canberra, 2004, [18.80]; ALRC, ALRC Report No 112, Uniform Evidence Law, 2005, [20.53]–[20.70]. 164. Family Law Council, Letter of Advice on the ‘Child Paramountcy Principle’, 17 January 2006, available at www.ag.gov.au/flc (accessed 23 August 2012). 165. For a brief summary of the background to these changes, see Truman & Truman (2008) 38 Fam LR 614; FLC ¶93-360. 166. Collins & Ricardo (No 2) [2015] FamCAFC 77 at [81]. On the impact of this section on the management of trials, see also Warhurst & Landy [2014] FamCAFC 201 at [34]; Harris & Hadfield [2014] FamCAFC 41 at [160]. 167. (2008) 38 Fam LR 614; FLC ¶93-360 at [9]. 168. (2008) 39 Fam LR 420; FLC ¶93-368. 169. In fact, the paternal grandparents were the original applicants and the parents the respondents, but as the father was to see the child at his parents’ home, it was in essence an application about the time he would spend with the child. 170. N Ross, ‘Legal Representation of Children’ in G Monahan and L Young (eds), Children and the Law in Australia, LexisNexis Butterworths, Sydney, 2008, pp 551–3. 171. Guidelines for Independent Children’s Lawyer, 2013, available at www.familycourt.gov.au (accessed 28 August 2015). Note also Family Law Rules 2004 (Cth) r 8.02. 172. L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths,

Sydney, 2009, [7.80]–[7.89]. 173. R Kaspiew et al, Independent Children’s Lawyers Study Final Report, 2nd ed, Australian Institute of Family Studies and Australian Government Attorney-General’s Department, Canberra, 2014. 174. R Kaspiew et al, ‘Getting the Word Out: The Role of Independent Children’s Lawyers in the Family Law System’ (2014) 28 Australian Journal of Family Law 29 at 30. 175. Ibid at 46. 176. Ibid at 30. 177. (1994) 17 Fam LR 537; FLC ¶92-461. 178. (1994) FLC ¶92-461 at [93]–[109]. It seems unlikely that the following class of case — ‘(v) Where the 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’ — still operates as a stand-alone basis for appointment of an ICL. 179. Ibid at [110]. See also Maldera & Orbel [2014] FamCAFC 135 at [89]. 180. Family Law Council, Pathways for Children: A Review of Children’s Representation in Family Law, AGPS, Canberra, 2004. 181. Ibid, p 28. 182. (1994) FLC ¶92-461 at [117]. 183. For analysis of the requirements of Art 12 and assessment of the provisions of the FLA, see M Otlowski and M Tsamenyi, An Australian Family Law Perspective on the United Nations Convention on the Rights of the Child, Unitas Law Press, Hobart, 1993, pp 86–94 (this article was published before the Family Law Reform Act 1995 (Cth), but the essence of the provisions regarding children’s wishes and separate representation remains the same). 184. (1996) 20 Fam LR 390; FLC ¶92-706. 185. McCall v Clark (2009) 41 Fam LR 483; FLC ¶93-045 at [149]. 186. Note in this regard the recommendations of the Family Law Council for ensuring adequate legal aid funding for separate representation in its 1996 report, Involving and Representing Children in Family Law, AGPS, Canberra, [7.51], available at www.ag.gov.au (accessed 7 March 2016). See also R Kaspiew et al, Independent Children’s Lawyers Study Final Report, 2nd ed, Australian Institute of Family Studies and Australian Government Attorney-General’s Department, Canberra, 2014, p 19, where it was stated that in the total period 2009–10 to 2010–11, $65 million was expended in legal aid grants for ICLs. 187. (1996) 20 Fam LR 315; FLC ¶92-675. 188. (1997) 22 Fam LR 112; FLC ¶92-762. 189. (1998) 23 Fam LR 1; 195 CLR 184; 155 ALR 251; FLC ¶92-812. 190. (1998) 23 Fam LR 1 at 29–30. 191. See Telfer v Telfer (1996) 20 Fam LR 619; FLC ¶92-688; S v S (1997) 22 Fam LR 112; FLC ¶92-762; Re David (No 2) (costs) (1998) 23 Fam LR 139; FLC ¶92-809; Marriage of Lyris & Hatziantoniou (1998) 24 Fam LR 391; (1999) FLC ¶92-840. 192. See Fitzgerald (As child representative for A (Legal Aid Commission of Tasmania)) v Fish

(2005) 33 Fam LR 123, where it was held that the amendments did not apply to proceedings begun before this date. 193. See also Family Law Rules 2004, r 8.02(2). 194. See the last edition of this book at [8.78]–[8.79]. 195. (1994) 17 Fam LR 537; FLC ¶92-461. 196. (1990) 14 Fam LR 397; (1991) FLC ¶92-191. 197. (1995) 19 Fam LR 1; FLC ¶92-615. 198. (1995) 19 Fam LR 594; FLC ¶92-636. 199. (1993) 16 Fam LR 485. 200. (2000) FLC ¶93-049. 201. Ibid at 87,753. 202. (2003) 31 Fam LR 257; FLC ¶93-172. 203. (2003) 31 Fam LR 257 at 265. 204. (2003) 32 Fam LR 352; FLC ¶93-165. 205. (2003) 32 Fam LR 352 at 360. 206. P & P & Legal Aid Commission of NSW; Human Rights and Equal Opportunity Commission (Intervener) (1995) 19 Fam LR 1; FLC ¶92-615. 207. (2003) 32 Fam LR 352; FLC ¶93-165. 208. (2003) FLC ¶93-165 at [29]. 209. Ibid at [31]. 210. R Kaspiew et al, Independent Children’s Lawyers Study Final Report, 2nd ed, Australian Institute of Family Studies and Australian Government Attorney-General’s Department, Canberra, 2014. 211. Guidelines for Independent Children’s Lawyer, 2013, p 3, available at www.familycourt.gov.au (accessed 24 April 2016). 212. Ibid, p 3. 213. Ibid, p 6. 214. R Carson et al, ‘The Role and Efficacy of Independent Children’s Lawyers: Findings from the AIFS Independent Children’s Lawyer Study’ (2014) 94 Family Matters 58 at 62. 215. See, for example, A Hay, ‘Child Protection and the Family Court of Western Australia: The Experiences of Children and Protective Parents’, Paper presented at the Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1–2 May 2003; L Laing, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence, Faculty of Education and Social Work, University of Sydney, 2010, p 41; P Parkinson and J Cashmore, The Voice of a Child in Family Law Disputes, Oxford University Press, New York, 2008, pp 45–8. 216. N Ross, ‘Independent Children’s Lawyers: Relational Approaches to Children’s Representation’ (2012) 26 Australian Journal of Family Law 214 at 238–9. 217. Guidelines for Independent Children’s Lawyer, 2013, available at

www.familycourt.gov.au (accessed 24 April 2016). 218. In this regard, note B & R and the Separate Representative (1995) 19 Fam LR 594 at 624; FLC ¶92-636, which held that an ICL should be appointed early in proceedings where the Aboriginality of a child is a significant issue. 219. (1993) 16 Fam LR 688; FLC ¶92-400. 220. (1992) 15 Fam LR 662; FLC ¶92-314. 221. (1992) 15 Fam LR 662 at 690. For an example of a case where an ICL was discharged, see Fox & Kent [2015] FCCA 2143. 222. (2000) FLC ¶93-045. 223. Ibid at 87,689. Note however the comment of Murphy J at [40] in Knibbs & Knibbs [2009] FamCA 840. 224. (2000) FLC ¶93-045 at 87,687. 225. (2000) 27 Fam LR 40; FLC ¶93-056. 226. Guidelines for Independent Children’s Lawyer, 2013, available at www.familycourt.gov.au (accessed 24 April 2016). 227. (1976) 10 ALR 227; FLC ¶90-061. 228. (1976) 1 Fam LN N29 at 228–9. 229. Ibid at 231. 230. Ibid at 233. 231. Ibid at 234. 232. (2001) 28 Fam LR 45 at 66–7; FLC ¶93-085. 233. (2008) FLC ¶93-377. 234. (1988) 12 Fam LR 506; FLC ¶91-967 (the section was then s 64(1)). 235. (1988) 12 Fam LR 506 at 508 per Fogarty and Strauss JJ. 236. Minister for Immigration, Multicultural and Indigenous Affairs & B (No 3) (2004) 31 Fam LR 339; FLC ¶93-174. 237. Bass & Bass (2008) FLC ¶93-366 provides an example when the mere fact that a report was particularly adverse to one party was not sufficient to warrant a second report being obtained. 238. See, for example, Biggs & Biggs [2014] FamCA 1033. 239. This is the term used in the Family Law Rules 2004 (Cth) and see the dictionary definition therein of ‘family report’. 240. Note also r 15.03 of the Family Law Rules 2004 (Cth). 241. (1977) 3 Fam LR 11,290; FLC ¶90-259. 242. Note SPS & PLS (2008) 39 Fam LR 295; FLC ¶93-363, which dealt with the consequences of a family report not being admitted into evidence. However, since that decision, FLA s 69ZU has been repealed (Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth)) and now the court may take into account any opinion of a family consultant, regardless of whether it is given as sworn evidence: Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and other Measures) Bill 2011, House of Representatives, 2011,

[127]–[128]. 243. (1977) 3 Fam LR 11,290 at 11,292. These statements were adopted by the Full Court of the Family Court in Foster & Foster (1977) FLC ¶90-281. 244. Marriage of Harris (1977) FLC ¶90-276; Marriage of Hall (1979) 5 Fam LR 609; FLC ¶90-713. Compare the view of Wood J in Marriage of McKee (1977) FLC ¶90-258. 245. (1977) FLC ¶90-276. 246. (1979) 5 Fam LR 609; FLC ¶90-713. 247. (1979) 5 Fam LR 609 at 615. 248. Ibid. 249. See further, M Palmer, ‘Establishing the Views of Children and Presenting Them to Court Early in Family Law Proceedings’, Paper delivered at the World Congress on Family Law and Children’s Rights, Sydney, Australia, 19 March 2013, available at www.lawrights.asn.au (accessed 30 August 2015). 250. [2014] FamCAFC 135. For a comment on this case, see R Carroll and C Crouch, ‘Maldera v Orbel: Choosing Between a Parent and a Grandparent — What Can Tip the Scales?’ (2015) 29(2) Australian Journal of Family Law 157. See also Zanda & Zanda [2014] FamCAFC 173 at 123–4. 251. (2010) 44 Fam LR 361; FLC ¶93-453. 252. (2010) FLC ¶93-453 at [51]. 253. Ibid at [50]. 254. See Tryon v Clutterbuck [2011] HCATrans 133 (13 May 2011), available at www.austlii.edu.au (accessed 2 May 2012). 255. Watts & Watts (1976) 1 Fam LR 11,266; FLC ¶90-046; Rose & Rose (1976) 2 Fam LR 11,101; FLC ¶90-064. 256. (1976) 1 Fam LN N2; FLC ¶90-003. 257. Note that Watson J’s comments in relation to then ss 62 and 64(5) of the FLA are no longer relevant. 258. (1981) 8 Fam LR 35; FLC ¶91-113. 259. (1981) 8 Fam LR 35 at 48. 260. [2012] FamCA 107. 261. Ibid at [146]. 262. (1984) 9 Fam LR 798; FLC ¶91-532. 263. (1984) 9 Fam LR 798 at 805. 264. Ibid at 807. 265. Re K (A Minor: Custody) (1990) 2 FLR 64. 266. L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [7.108]–[7.113]. 267. (1980) 6 Fam LR 35; FLC ¶90-847. 268. (1998) 22 Fam LR 776; FLC ¶92-801. 269. FLA s 60CC(2)(a). 270. See R Chisholm, ‘Interim Proceedings After the Family Law Amendment (Shared

Parental Responsibility) Act 2006’ (2006) 20 Australian Journal of Family Law 219. 271. (2006) 36 Fam LR 422; FLC ¶93-286. This decision was confirmed in Keach & Keach (2007) FLC ¶93-353. 272. Cowling v Cowling (1998) 22 Fam LR 776; FLC ¶92-801. 273. (2006) 36 Fam LR 422; FLC ¶93-286 at [68]. 274. (2006) FLC ¶93-286 at [72]–[73]. 275. Ibid at [78]. 276. Ibid at [80]. 277. Ibid at [82]. See also Truman & Truman (2008) 38 Fam LR 614; FLC ¶93-360. 278. (2007) 38 Fam LR 275; FLC ¶93-343. 279. (2006) 36 Fam LR 422; FLC ¶93-286. 280. (2007) FLC ¶93-343 at [88]. 281. (2007) 37 Fam LR 256; FLC ¶93-329. 282. (1976) 1 Fam LR 11,540. 283. Ibid at 11,544. 284. (1976) 2 Fam LR 11,558; FLC ¶90-140. 285. (1978) 6 Fam LR 570; (1979) FLC ¶90-725. See also Marriage of Cullen (1981) 8 Fam LR 35; FLC ¶91-113, particularly 8 Fam LR 35 at 48 per Strauss J; Marriage of Freeman (1986) 11 Fam LR 293; (1987) FLC ¶91-857; Marriage of Zabaneh (1986) 11 Fam LR 167; FLC ¶91-766; N & R (1991) 15 Fam LR 39; FLC ¶92-252; Marriage of L (1989) 15 Fam LR 157; (1992) FLC ¶92-274. 286. (1986) 11 Fam LR 293; (1987) FLC ¶91-857. 287. (1986) 11 Fam LR 293 at 297–8. 288. (1978) 6 Fam LR 570; (1979) FLC ¶90-725. 289. [2014] FamCAFC 92. 290. [1986] HCA 17; (1986) 161 CLR 513 at 519. 291. [2014] FamCAFC 128. 292. Ibid at [13]–[15]. 293. (1990) 14 Fam LR 397; (1991) FLC ¶92-191. See also D & Y (1995) 18 Fam LR 662; FLC ¶92-581. 294. (1978) 6 Fam LR 570; (1979) FLC ¶90-725. 295. (1986) 11 Fam LR 167; FLC ¶91-766. 296. (1990) 14 Fam LR 397 at 409. 297. (2001) FLC ¶93-079. 298. Ibid at [50]. 299. [2004] FamCA 568 at [45]–[47]. 300. (1998) 197 CLR 172 at 204. 301. See Re F & C & Child Representative [2004] FamCA 568 at [46]. 302. See also the discussion in Edwards & Edwards (2006) FLC ¶93-306 at [108]–[116].

303. (2001) FLC ¶93-079. 304. Ibid at 88,367. 305. For examples of its application post-1 July 2006, see Sandler & Kerrington (2007) FLC ¶93-323; Moose & Moose (2008) FLC ¶93-375. 306. (2008) 39 Fam LR 295; FLC ¶93-363. 307. (2008) FLC ¶93-363 at [48]. 308. Ibid at [81]. For further discussion of this issue, see Miller & Harrington (2008) 39 Fam LR 654; FLC ¶93-383 and the discussion in it of Wilson FM’s comments in Collivas v Cassimatis [2007] FMCAfam 293. 309. (2009) 42 Fam LR 1 at [47]ff. 310. Ibid at [58]. Their Honours referred to the following post-2006 cases discussing this rule: Reid v Lynch (2010) 44 Fam LR 141; FLC ¶93-448; B v J [2009] FamCAFC 103; Caracini v Paglietta [2009] FamCAFC 188; Gotch v Gotch [2009] FamCAFC 3. 311. [2015] FamCAFC 43. 312. Ibid at [49]. 313. (1978) 6 Fam LR 570 at 572. 314. [2015] FamCAFC 43 at [56]–[57]. See also Harding & Watson [2014] FamCAFC 188 at [46]. 315. CDW v LVE [2015] WASCA 247 at [84]. 316. Carriel & Lendrum [2015] FamCAFC 43 at [59]. Note however that Full Court also commented that it seriously doubted whether an order refusing an application to rehear a parenting dispute was a parenting order under s 64B. This is discussed above at 8.45. 317. [1986] HCA 17; (1986) CLR 513. 318. See, for example, New Zealand: Care of Children Act 2004 s 139A; Canada: Divorce Act 1985 s 17. There are also various US jurisdictions where the rule is embedded in legislation. 319. See Australian Law Reform Commission (ALRC), Report No 69, Part I Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, [9.31]–[9.32] and Recommendation 9.3; Commonwealth of Australia, Report of the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, [6.43]–[6.51]. 320. Australian Law Reform Commission (ALRC), Report No 69, Part I Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, [9.31]. 321. Family Law Council, Letter of Advice to the Attorney-General, Review of Div 11 — Family Violence, 16 November 2004. 322. For example, see Dunst & Dunst [2014] FamCA 964 at [104]. For discussion of this section, see L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2)(a): A New Era?’ (2014) 28 Australian Journal of Family Law 233 at 255ff. 323. On a plain reading of s 60CG, it appears a court can make an order that would expose a person to an unacceptable risk of abuse, if that were in the best interests of the child. However, it seems unlikely this was intended or that an order would be made on this basis. See, for example, Vance & Carlyle [2014] FamCA 651 at [67],

where Austin J said ‘[i]ncidentally, the orders should not expose the mother to the risk of family violence (s 60CG(1)(b))’ (emphasis added). See also El Kazemde & Hanif [2014] FamCA 452 at [30] per Austin J. 324. For an application of this provision, see Cameron v Walker (2010) FLC ¶93-445. 325. See the comments of P Nygh, ‘The New Part VII: An Overview’ (1996) 10 Australian Journal of Family Law 4 at 15. See also s 68R(3)(b). 326. (2011) 45 Fam LR 248; FLC ¶93-463. 327. Talbot v Norman (2012) FLC ¶93-504. Naturally, therefore, this section cannot be used to garner jurisdiction to make orders regarding the use of stored sperm: Vallance & Marco [2012] FamCA 653. See also Lee & Hutton [2013] FamCA 745 at [137], where Watts J notes three instances where it has been held that the word ‘child’ in the FLA does not include a foetus, including Talbot v Norman. 328. See, for example, GDPW & IDPW (2004) 33 Fam LR 338; FLC ¶93-206 (obtaining a passport for a child); W & G (No 1) (2004) 35 Fam LR 417; (2005) FLC ¶93-247 (an order to disclose to the child her father’s identity); Re: Baby R (Life Support) [2015] FamCA 449 (withdrawal of a baby’s life support); Department of Family and Community Services & Haura [2015] FamCA 72 (injuncting parents to restrain the carrying out of female genital mutilation on the child); Vaziri & Maddison [2014] FamCa 897 (summary order for the return of children to another country); Jacobs & Kirby [2014] FamCA 231 (order that a parent be subject to supervision of a welfare agency). 329. For a discussion of this issue in relation to boys, see G Carlson, M Taylor and J Wilson, ‘Sterilisation, Drugs Which Suppress Sexual Drive, and Young Men Who Have Intellectual Disability’ (2000) 25 Journal of Intellectual and Developmental Disability 91. 330. Cf the decisions Re a Teenager (1989) 13 Fam LR 85; FLC ¶92-006 and Re S (1989) 13 Fam LR 660; (1990) FLC ¶92-124 with the decisions Re Jane (1988) 12 Fam LR 662; FLC ¶92-007 and Re Elizabeth (1989) 13 Fam LR 47; FLC ¶92-023. 331. Department of Health and Community Services (NT) v JWB & SMB (Re Marion) (1992) 15 Fam LR 392; FLC ¶92-293. 332. (1990) 14 Fam LR 427; (1991) FLC ¶92-193. 333. (1988) 12 Fam LR 662; (1989) FLC ¶92-007. 334. (1992) 15 Fam LR 392 at 410. 335. For an example of where permission for sterilisation was refused on the grounds that the procedure was not clearly shown to be in the child’s best interests, see L & M; Director General, Department of Family Services and Aboriginal and Islander Affairs (1993) 17 Fam LR 357; (1994) FLC ¶92-449. 336. Re Marion (No 2) (1992) 17 Fam LR 336; (1994) FLC ¶92-448. 337. (1994) 17 Fam LR 457; FLC ¶92-462. 338. AGPS, Canberra, 1994. 339. (1995) 19 Fam LR 1; FLC ¶92-615. 340. (1995) 19 Fam LR 1 at 18. 341. S Brady, J Briton and S Grover, The Sterilisation of Girls and Young Women in

Australia: Issues and Progress, Human Rights and Equal Opportunity Commission, April 2001, p 58, available at www.humanrights.gov.au (accessed 9 September 2015). 342. Ibid, p 56. 343. See, for example, H Rhoades, ‘Intellectual Disability and Sterilisation — An Inevitable Connection?’ (1995) 9 Australian Journal of Family Law 234. For a discussion of the arguments concerning sterilisation of girls with disabilities, see S Brady, ‘Sterilization of Girls and Women with Intellectual Disabilities’ (2001) 7 Violence Against Women 432. On this topic generally, see further N Mushin, ‘Special Medical Procedures, Sterilisation of Minors and the Role of the Family Court’ (2007) 14 Psychiatry, Psychology and Law 199; L Steele, ‘Making Sense of the Family Court’s Decisions on the Non-Therapeutic Sterilisation of Girls with Intellectual Disability’ (2008) 22 Australian Journal of Family Law 1. 344. (1992) 17 Fam LR 336 at 351; (1994) FLC ¶92-448. 345. P & P (1995) 19 Fam LR 1 at 26; FLC ¶92-615. 346. See Re Jamie [2013] FamCAFC 110 at [152] for discussion of the origin of this term. 347. See the definition of ‘Medical Procedure Application’ in the Dictionary to the Rules. 348. See the comments of the majority in Secretary, Department of Health and Community Services v JWB & SMB (1992) 15 Fam LR 392 at 411, quoting Nicholson CJ with approval. 349. Re GWW & CMW (1997) 21 Fam LR 612; FLC ¶92-748; Re Inaya (Special Medical Procedure) (2007) 38 Fam LR 546. For discussion of the legal and ethical issues surrounding ‘saviour siblings’, see B Bennett, ‘Symbiotic Relationships: Saviour Siblings, Family Rights and Biomedicine’ (2005) 19 Australian Journal of Family Law 195. See also S Then and G Appleby, ‘Tissue Transplantation from Children: Difficulties in Navigating State and Federal Systems’ (2010) 33 University of New South Wales Law Journal 305. 350. Mains & Redden [2011] FamCAFC 184. 351. Re Baby A [2008] FamCA 417. 352. Re Brodie (Special Medical Procedures) [2008] FamCA 334; Re: O (Special Medical Procedure) [2010] FamCA 1153; Re Rosie (Special Medical Procedure) [2011] FamCA 63; Re Jamie (special medical procedure) [2011] FamCA 248; Re Jamie (2012) FLC ¶93-497; Re Sean & Russell (Special Medical Procedure) (2010) 44 Fam LR 210; Re: Sally (Special Medical Procedure) [2010] FamCA 237; Re Lesley (Special Medical Procedures) [2008] FamCA 1226. 353. This condition was previously often referred to as ‘gender identity disorder’. 354. (1993) 16 Fam LR 715; FLC ¶92-402. 355. Department of Health and Community Services (NT) v JWB & SMB (Re Marion) (1992) 15 Fam LR 392 at 401; FLC ¶92-293. 356. (2004) 31 Fam LR 503; FLC ¶93-175. See also Re Brodie (Special Medical Procedure) [2008] FamCA 334. 357. This was confirmed in Re Bernadette (2011) 45 Fam LR 248; FLC ¶93-463. 358. Re Alex (2009) 42 Fam LR 645.

359. (2012) FLC ¶93-497, which deals with leave for a public authority and the Australian Human Rights Commission to intervene in the proceedings. See further on this issue, K Parlett and K Weston-Scheuber, ‘Consent to Treatment for Transgender and Intersex Children’ (2004) 9 Deakin Law Review 375. 360. See Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402. 361. See Bryant CJ’s confirmation of this: Re Marion (1992) 15 Fam LR 392; FLC ¶92-293 at [96]–[98]. 362. Bryant CJ acknowledged the discomfort such a finding may cause; however, her Honour pointed to the fact that the Diagnostic and Statistical Manual of Mental Disorders (DSM – 5) categorises GID in this way, and so on that basis she must accept that conclusion: (2012) FLC ¶93-497 at [69]. 363. Ibid at [137]–[139]. See also the discussion of this case and this issue by Bennett J in Re Martin [2015] 1189. 364. See the review of 16 post-Re Jamie decisions in Justice Strickland, ‘To Treat or Not to Treat: Legal Responses to Transgender Young People Revisited’, Paper presented at the Association of Family and Conciliation Courts Australian Chapter Conference, Building Bridges: A Multidisciplinary Approach to Family Law, Sydney, 14–15 August 2015. 365. (2004) 31 Fam LR 339; FLC ¶93-174. 366. Justice Strickland, ‘To Treat or Not to Treat: Legal Responses to Transgender Young People Revisited’, Paper presented at the Association of Family and Conciliation Courts Australian Chapter Conference, Building Bridges: A Multidisciplinary Approach to Family Law, Sydney, 14–15 August 2015 at 18–19. 367. (2011) 45 Fam LR 313 at [157]ff. 368. Chief Justice Bryant, ‘It’s My Body Isn’t It? Children, Medical Treatment and Human Rights’, 2009 Costello Lecture, 23 July 2009, available at www.truecolours.org.au (accessed 3 May 2012). 369. (2004) 31 Fam LR 339; FLC ¶93-174. 370. See Secretary of Department of Health and Human Services v Ray (2010) 45 Fam LR 1; FLC ¶93-457, where the Full Court held that the Family Court could not rely on s 67ZC to make an order granting the Secretary of the Tasmanian Department of Health and Human Services parental responsibility for a child, absent the Secretary’s consent. 371. (2009) 42 Fam LR 645. 372. Ibid at [131]. 373. See also L v T (1999) 25 Fam LR 590; FLC ¶92-875 at [55]–[60]. 374. (2008) 221 FLR 307; FLC ¶93-387. 375. See, for example, the cases discussed in J Eades, ‘Parens Patriae Jurisdiction of the Supreme Court is Alive and Kicking’ (2000) 38 Law Society Journal 52. See also Re Tilly v Minister for Family and Community Services [2015] NSWSC 1208. 376. (1976) 2 Fam LR 11,126; FLC ¶90-086. 377. Report No 35, AGPS, Canberra, 1987. 378. Commonwealth of Australia, Report of the Joint Select Committee on Certain Aspects of

the Operation and Interpretation of the Family Law Act, AGPS, Canberra, 1992, [7.32]. 379. Ibid, [8.59]. 380. Ibid, [8.66]–[8.67]. Recommendations for further changes were also made by the Australian Law Reform Commission (ALRC) in its Report No 73, For the Sake of the Kids: Complex Contact Cases and the Family Court AGPS, Canberra, 1995, Recommendations 5.1–5.8. 381. Family Law Council, Child Contact Orders: Enforcement and Penalties, AGPS, Canberra, 1998, available at www.ag.gov.au (accessed 24 May 2012). 382. H Rhoades, R Graycar and M Harrison, University of Sydney and Family Court of Australia, 2000. 383. Ibid, [1.31]–[1.34]. 384. Ibid, [6.32]. 385. L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [7.143]. 386. O’Ryan J has held this does not require ‘proof of contumacious behaviour’: Jetts v Maker [2010] FamCAFC 55 at [83]. 387. (2007) FLC ¶93-323. 388. Ibid at [39]. 389. Ibid at [43]. 390. (1978) 6 Fam LR 570; (1979) FLC ¶90-725. 391. In Irvin & Carr (2007) FLC ¶93-322 the Full Court approved Warnick J’s comments on the proper process in respect of s 70NBA. 392. (2007) 38 Fam LR 95; FLC ¶93-354. 393. [2012] FamCAFC 210. 394. Ibid at [95]. 395. See, for example, King & Aames [2013] FamCA 263. 396. [2015] FamCAFC 68. 397. Ibid at [38]. 398. [2008] FamCAFC 5. 399. Ibid at [28]–[29]. 400. Ibid at [28]. 401. [2010] FamCA 1132 at [51]–[53]. 402. [2014] FamCAFC 135 at [75]. 403. Tindall & Saldo [2015] FamCAFC 1 at [38]–[42]. This provides an example of a case where a mother’s breach of contact orders was held to be based on a genuine belief and reasonable grounds (the mother having breached orders after the trial of the father for assaults on both the mother and child). The case also highlights that ‘health’ and ‘safety’ constitute two separate limbs, either or both of which can be invoked. 404. This power does not derogate from the general power to award costs under FLA s 117: Ongal & Materns (No 3) [2013] FamCA 946 at [88].

405. Note Cronin J’s comment that this provision is in fact no different to an order varying the parenting orders in place under s 70NBA: Ackersley v Rialto [2009] FamCA 817 at [88]. 406. In this vein, note also the comment of Murphy J in McLory v McLory [2010] FamCA 305 at [54], which comment is cited with approval in Carrington & Gunby (No 2) [2013] FamCA 433 at [60]. 407. (2007) 37 Fam LR 696; FLC ¶93-341. 408. (2007) FLC ¶93-341 at [61]. 409. Subsection 70NFA(4) requires the court to consider whether the breach should be treated as ‘less serious’: McClintock v Levier [2009] FamCAFC 62 at [219] per Cronin J. 410. See the Full Court’s comments in Gravis v Major [2010] FamCAFC 239 at [131]. 411. This is not a new provision: see its predecessor s 70NJ(6A), inserted by the Family Law Amendment Act 2000 (Cth). 412. [2008] FamCAFC 53. 413. Ibid at [81]. 414. (2004) FLC ¶93-193. 415. (2009) FLC ¶93-401. 416. See E McInnes, ‘The Attitudes of Separated Resident Mothers in Australia to Children Spending Time with Fathers’ (2007) 21 Australian Journal of Family Law 20. 417. Jetts v Maker [2010] FamCAFC 55 at [83] per O’Ryan J. 418. (2007) 215 FLR 30; FLC ¶93-346. 419. (2007) FLC ¶93-346 at [51]. 420. Ibid at [66], and note the reference there to the approach adopted by Benjamin J in Elspeth v Peter [2007] FamCA 254. 421. (1994) 18 Fam LR 164; FLC ¶92-496. 422. [2013] FamCA 257. See also Tate & Tate (No 3) (2003) 30 Fam LR 427; FLC ¶93-138. 423. [2013] FCCA 732. 424. (1978) 4 Fam LN 4; FLC ¶90-434. 425. (1996) 21 Fam LR 259; (1997) FLC ¶92-729. 426. (1996) 21 Fam LR 259 at 264. 427. Ibid at 264–5. See Thomason & Malhotra [2010] FamCAFC 85 on the need to explicitly address all of the factors mentioned in Kuebler and Line. 428. As to whether a recovery order is a parenting order, see Hugh v Sawer [2011] FamCA 48. 429. In Jollie & Dysart [2014] FamCAFC 149 at [150], it was held that a formal application for a recovery order was not required: in that case the independent children’s lawyer included the recovery order in Minute of Orders tendered to the court. 430. This includes an independent children’s lawyer: Jollie & Dysart [2014] FamCAFC 149 at [146]–[147].

431. Sandler & Kerrington (2007) FLC ¶93-323. 432. [2014] FamCAFC 149 at [167]ff. 433. See the comments of the Full Court of the Family Court regarding the purpose of the Child Abduction Convention in Director General of Family and Community Services and Davis (1990) 14 Fam LR 381 at 383–4; FLC ¶92-182 and Marriage of Graziano & Daniels (1991) 14 Fam LR 697 at 703; FLC ¶92-212. See also Kirby J in DP v Commonwealth Central Authority; JLM v Director-General, New South Wales Department of Community Services (2001) 27 Fam LR 569 at 599; FLC ¶93-081. 434. For explanation, see Director General of Family and Community Services & Davis (1990) 14 Fam LR 381; FLC ¶92-182. See also De L v Director-General Department of Community Services (NSW) [1996] HCA 5; 187 CLR 640; 70 ALJR 532; 136 ALR 201. 435. See Sch 2 to the Family Law (Child Abduction Convention) Regulations 1986 (Cth), which sets out the Convention countries, and note also reg 10. 436. (2010) 245 FLR 172; FLC ¶93-454 at [13]ff. 437. For general analysis of the framework underpinning the operation of the Convention, see C Martin, ‘Abduction of Children — Some National and International Aspects’ (1987) 1 Australian Journal of Family Law 125. For a discussion of how the various articles of the Convention have been interpreted in contracting states, see J Kay, ‘The Hague Convention — Order or Chaos?’ (2005) 19 Australian Journal of Family Law 245. 438. Note the amendment to this regulation effected by the Family Law Amendment Act (No 3) 2004 (Cth), to overcome the decision in A v GS (2004) 32 Fam LR 583; FLC ¶93-199. 439. See also Wenceslas & Director-General, Department of Community Services [2007] FamCA 398. 440. Secretary, Attorney-General’s Department & TS [2000] FamCA 1692 at [61]–[78]; Department of Community Services & Raddison [2007] FamCA 1702. See also McCall & McCall; State Central Authority (Applicant); Attorney-General (Cth) (Intervener) (1995) FLC ¶92-551. 441. [2003] FamCA 929. See also the three-step process for resolving this issue, approved in this case at [33]–[36]. 442. Ibid at [63]. 443. For a further example of the need to consider carefully the rights of the parent under the laws of the place of habitual residence, see the High Court decision in MW v Director-General, Department of Community Services (2008) 39 Fam LR 1; 82 ALJR 629. See also Brown v Burke (2007) 39 Fam LR 276. 444. (2009) 237 CLR 582. See also De Lewinski v Director-General, New South Wales Department of Community Services (1997) 21 Fam LR 413; FLC ¶92-737; Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431; FLC ¶93373; Zotkiewicz v Commissioner of Police (No 2) (2011) 252 FLR 139; FLC ¶93-472; State Central Authority v Camden [2012] FamCAFC 45. 445. (2009) 237 CLR 582 at [23]. 446. Ibid at [44]. 447. [2007] 1 NZLR 40.

448. Ibid at 61. Note that in State Central Authority & Camden [2012] FamCAFC 45, the Full Court confirmed at [53] that the prior Full Court decision in Zotkiewicz & Commissioner of Police (No 2) [2011] FamCAFC 147 did not affect the test as set out by the High Court in LK v Director-General, Department of Community Services. 449. Zotkiewicz & Commissioner of Police (No 2) [2011] FamCAFC 147 at [74]. 450. Family Law Section of the Law Council of Australia, International Parental Child Abduction Legal Resource, Law Council of Australia, 2015, p 29, citing Re S (a Minor) [1998] AC 750. 451. (1991) 14 Fam LR 697; FLC ¶92-212. 452. (1988) 12 Fam LR 755 at 766; (1989) FLC ¶92-001. 453. (1998) 24 Fam LR 178; FLC ¶92-829. 454. (1996) 20 Fam LR 390; FLC ¶92-706. 455. (1999) 24 Fam LR 495; FLC ¶92-842. 456. Ibid at 192. The Full Court was in fact citing from Director-General, Department of Community Services v M & C & the Child Representative [1998] FamCA 1518; (1998) FLC ¶92-829. 457. (1999) 24 Fam LR 495 at 501–2. For a recent outline of the law on this point, see Attorney-General’s Department & McGaffey [2015] FamCA 722 at [100]ff. 458. [2013] FamCA 530. 459. Ibid at [244]. See also Attorney-General’s Department & McGaffey [2015] FamCA 722 at [129]. 460. [2015] FamCA 722 at [114]. 461. (1997) 141 FLR 44 at [84]. Le Poer Trench J has expressed this view in other cases, such as Director-General, Department of Family and Community Services & Tsvetan [2011] FamCA 796, where his Honour at [33] also provided an example of when the discretion to return might be exercised. Rees J in Department of Family and Community Services & Valli [2013] FamCA 1004 at [72] also accepted there was a discretion to return. 462. Director-General, Department of Family and Community Services & Tsvetan [2011] FamCA 796 at [33]. 463. (1997) FLC ¶92-746. 464. (2005) FLC ¶93-243. 465. [2010] FamCA 648. 466. (1998) FLC ¶92-829 at [98]. 467. For a discussion of this matter, see Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431; FLC ¶93-373. 468. (1996) 21 Fam LR 159; FLC ¶92-717. 469. [2008] FamCA 872. See also P v Director General, Department of Community Services [2002] FamCA 321; Wenceslas & Director-General, Department of Community Services [2007] FamCA 398. 470. (2001) 27 Fam LR 569 at 573; FLC ¶93-081. 471. Gsponer v Johnstone (1988) 12 Fam LR 755; (1989) FLC ¶92-001; Director General of

Family and Community Services and Davis (1990) 14 Fam LR 381; FLC ¶92-182; Murray & Tam; Director, Family Services ACT (Intervener) (1993) 16 Fam LR 982; FLC ¶92-416. 472. (1995) 18 Fam LR 433; FLC ¶92-575. 473. For a detailed discussion of this exception, see Family Law Section of the Law Council of Australia, International Parental Child Abduction Legal Resource, Law Council of Australia, 2015, pp 32ff. 474. (2001) 27 Fam LR 569; FLC ¶93-081. 475. (2001) 27 Fam LR 569 at 582. 476. Ibid at 582. 477. Ibid at 585. 478. Ibid at 582. 479. See the discussion of this point by J Kay, ‘The Hague Convention — Order or Chaos?’ (2005) 19 Australian Journal of Family Law 245 at 270–1 and reference therein to the unreported decision of SCA v Maynard [2003] FamCA 911. 480. [2014] FamCAFC 197. 481. [2011] 4 All ER 517. 482. Ibid at [33]. 483. See also Director-General, Department of Families & RSP (2003) 30 Fam LR 566; FLC ¶93-152. 484. (2003) 30 Fam LR 566 at 589. 485. On the relevance of the removing parent’s conduct to the grave risk of harm exception, see Director-General Family and Community Services & Davis (1990) 14 Fam LR 381; FLC ¶92-182. See also Director-General, Department of Communities, Child Safety and Disability Services & Delaney (No 2) [2015] FamCA 683 at [151]ff, where Kent J distinguished JLM on the basis that the mother in this case was the originator of the alleged harm by maintaining that, despite the outcome, she would not return with the child to the United States. 486. (2002) 29 Fam LR 51; FLC ¶93-111. 487. Cf Kilah v Director-General, Department of Community Services (2008) 39 Fam LR 431; FLC ¶93-373. 488. For an outline of some US decisions and academic articles considering this issue, see J Morley, ‘The Future of the Grave Risk of Harm Defense in Hague Cases’, available at www.international-divorce.com (accessed 19 September 2015). 489. Australian Law Reform Commission (ALRC), Report No 69, Equality before the Law: Women’s Equality, AGPS, Canberra, 1994, Pt 2. 490. See further, J Kay, ‘The Hague Convention — Order or Chaos?’ (2005) 19 Australian Journal of Family Law 245 at 264–7. 491. [2012] FamCA 563. 492. Ibid at [43]. 493. Ibid at [52]. 494. Ibid at [53].

495. Note the new definition of ‘family violence’ inserted in 2006 (s 4AB) applies in so far as it is relevant to the Regulations: State Central Authority & Young [2012] FamCA 563 at [42]. 496. (2006) 35 Fam LR 489; FLC ¶93-264. 497. (2006) FLC ¶93-297. 498. Ibid at [29]. 499. (2007) 37 Fam LR 583; FLC ¶93-340. 500. (2007) FLC ¶93-340 at [34]. 501. Australian Law Reform Commission and New South Wales Law Reform Commission, Report No 114, Family Violence — A National Legal Response, AGPS, Canberra, 2010. 502. Reunite International, The Outcomes for Children Returned Following an Abduction, September 2003, p 28, available at www.reunite.org (accessed 19 September 2015). 503. Australian Law Reform Commission and New South Wales Law Reform Commission, Report No 114, Family Violence — A National Legal Response, AGPS, Canberra, [17.315]. 504. (1996) 20 Fam LR 390 at 399; FLC ¶92-706. 505. (1996) 20 Fam LR 390 at 402. 506. (2006) 36 Fam LR 183; FLC ¶93-277. 507. See, for example, Agee & Agee (2000) 27 Fam LR 140; FLC ¶93-055. 508. Director General of Department of Community Services v Crowe (1996) 21 Fam LR 159; FLC ¶192-717; De Lewinski v Director General, New South Wales Department of Community Services (1997) 21 Fam LR 413. 509. (1997) 21 Fam LR 413 at 426. 510. See also the factual background to Waite & Waite-Hollins (2007) FLC ¶193-325 and, for a further example, see Tarritt v Director-General, Department of Community Services [2008] FamCAFC 34. However, see Department of Communities, Child Safety and Disability Services v Garning (Discharge Application) [2012] FamCA 839. 511. (2006) 35 Fam LR 489; FLC ¶93-264. 512. See Director-General, Department of Families, Youth and Community Care v Bennett (2000) 26 Fam LR 71; FLC ¶93-011; A v GS (2004) 32 Fam LR 583; FLC ¶93-199; McCall & State Central Authority; Attorney-General (Cth) (Intervenor) [1994] FamCA 120. 513. See Van Rensburg & Paquay (1993) 16 Fam LR 680; FLC ¶92-391, building on the earlier views expressed in Barrios & Sanchez (1989) 13 Fam LR 477; FLC ¶92-054. 514. (1990) 171 CLR 538. 515. (1993) 16 Fam LR 285; FLC ¶92-353. 516. (1994) 17 Fam LR 600; FLC ¶92-480. For a case confirming the application of the principles from this case post-2006, see Pascarl & Oxley [2013] FamCAFC 47. 517. (1994) 17 Fam LR 600 at 618–19. 518. (2006) 35 Fam LR 559; FLC ¶93-287.

[page 552]

9 CHILDREN AND PARENTS: THE EXERCISE OF DISCRETION IN REALLOCATING PARENTAL RESPONSIBILITY ___________________________

Introduction 9.1 The previous chapter outlined the legislative framework found in the Family Law Act 1975 (Cth) (FLA) regarding decisions about children, looked more closely at the Family Court’s broader ‘welfare’ power and considered how international child abduction cases are dealt with. In this chapter, we look in detail at the exercise of discretion in decisions about the allocation of parental responsibility. We have already noted the high degree of discretion given to decision-makers. As to how the discretion is exercised, we have seen that, for most decisions, the best interests of the child will be the paramount consideration. In this chapter, we will only be considering how decisions are made about the allocation of parental responsibility and in this regard the best interests of the child are always the paramount consideration. The current iteration of Pt VII goes further than all previous versions in

shaping how decision-makers will deal with the various competing factors relevant to determining a child’s best interests. In this chapter, we will explore the provisions that govern the exercise of discretion in more detail, and consider how both the FLA and case law treat particular categories of cases and relevant factors. We will start, however, with considering the operation of the provisions that give rise to the current process for determining parenting disputes.

The statutory framework for applying the best interests principle 9.2 Section 60CA requires the court to give primacy to the child’s best interests, in making a parenting order. This involves the exercise of discretion by the decision-maker. We have set out in Chapter 8 the various legislative provisions that are relevant to this exercise of discretion. [page 553] 9.3 The Full Family Court, in Goode v Goode1 (a case involving the correct principles to be applied in interim parenting decisions — see 8.100ff), had the following to say about the process of applying the various provisions: 1.

2.

The starting point for all parenting applications is consideration of the presumption in favour of equal shared parental responsibility (ESPR) (s 61DA).2 If ESPR is ordered, this automatically triggers the operation of s 65DAA and so the consideration of equal (and then substantial and significant) parenting time. This is ‘the first thing the Court must do’.3 However, even in cases where the

3.

4.

5. 6.

presumption is not applied, the court may still order equal or substantial parenting time, either because one of the parents has sought that, or because the best interests of the child require it. In this context, it was noted that following from U v U,4 the court might make orders neither party sought, subject to according the parties procedural fairness.5 ‘Considering’ making an order for equal or substantial time under s 65DAA means positively considering making such an order, provided the twin tests of reasonable practicability and the child’s best interests are met.6 When the court finds neither equal nor substantial time appropriate, ‘the issue is at large and to be determined in accordance with the child’s best interests … as ascertained by a consideration of [the factors in] … s 60B and s 60CC’.7 The process is the same whether it is a final or interim parenting order under consideration.8 ‘The child’s best interests remain the overriding consideration.’9

However, these general statements leave open how decisionmakers should marshal the evidence in front of them, in applying the various provisions. In a decision made a few months before Goode v Goode, Rose J in Nawaqaliva & Marshall10 made the point that the primary considerations in determining what is in the child’s best interests (s 60CC(2)) cannot be applied without first making findings of fact that arise out of a consideration of the additional considerations (s 60CC(3)). For example, the benefit to the child of a meaningful relationship with each parent cannot be ascertained without first making findings as to the [page 554] nature of the relationship between parent and child and the

respective parents’ capacities to provide for the child’s needs. The same is true in relation to the primary consideration directed at violence; findings will first be required as to the history of family violence and the existence of any family violence orders. The Full Court in Goode v Goode also indicated that findings should be made under s 60CC before turning to the other provisions.11 The Full Court addressed the matter more generally in Taylor & Barker,12 concluding that as the primary concern was the child’s best interests, and as the FLA required decision-makers to refer to the primary and additional considerations in ascertaining what best advanced a child’s interests, the logical conclusion was that: … the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.13

Subsequent Full Court decisions have consistently reiterated this last point, highlighting that, while Pt VII requires certain matters to be considered, there is no required order of consideration set out in the legislation, and an appeal on this point will not succeed if it can be seen from the reasons that the requirements of the Act were met.14 9.4 On the basis of the case law set out above, it would seem the preferred (though not mandatory) approach for considering a parenting dispute (after identifying the issues) is to start by making evidentiary findings on the various relevant considerations and then turning to the process set out in Goode v Goode: see 9.3. It is clear that the court is not bound, in carrying out this process, to consider only those proposals put by the parties to the litigation; the court is free to consider other proposals that might better advance the interests of the child. In spite of this approach, we will start by discussing how the

presumption of ESPR and s 65DAA have been applied, before turning to the lengthy task of addressing the various relevant considerations under s 60CC and the particular factual issues that routinely arise for consideration in parenting disputes. [page 555]

Applying the presumption of equal shared parental responsibility 9.5 Having made findings on the factual matters relevant to the s 60CC considerations (see 9.3), a court’s next step in making parenting orders will usually be a consideration of the presumption of ESPR set out in s 61DA. The significance of this section was highlighted by the Full Court in Jollie & Dysart,15 where it was said that the power to make parenting orders is conditional on the presumption being applied, not just referred to or considered. We explained in Chapter 8 that in the normal situation, where ‘live with’ orders are made, this presumption will only relate to the sharing of responsibility in relation to major long-term issues: see 8.62. The Full Court has noted that the term ‘equal shared parental responsibility’ ‘contemplates a degree of elasticity in determining where the line falls between those decisions that are “major long-term” and those that are not’.16 In other words, some matters that might look like day-to-day issues may, in the particular circumstances of a case, be major and long-term. If it is found by the court that the presumption is not displaced by violence considerations (see 9.6), and is not rebutted (see 8.62), then an order for ESPR must be made. Kay J therefore held in OS v PS17 that a federal magistrate, who found the presumption applied and had not been rebutted, was not then able to grant the father

in this case sole parental responsibility in respect of the young child’s education. Thus, only once it is found that the presumption does not apply, or is rebutted, can an alternative be considered, including an order in favour of a third party.18 However, even where the presumption does not apply, given the legislative intent behind the 2006 amendments (see further, Ch 8), it is arguable that decision-makers ought still to consider whether an order for ESPR should be made.19 This reflects the thinking that lay behind the introduction of the presumption: the acceptance that it is a very grave step to deprive a child of the benefit of having both parents involved in making major decisions about their life.20 In line with the High Court’s statements in U v U21 (see 9.120), the court can make an order for ESPR (or not) regardless of the order actually sought by either party.22 [page 556] Parental responsibility for major long-term issues can be divided or shared between more than two people; however it seems this could not be called an order for ESPR, even in the unlikely event that three people were to have equal and shared responsibility for all major long-term issues.23 9.6 The presumption does not apply where there are reasonable grounds to believe a parent, or someone with whom a parent cohabits, has engaged in: abuse of the child; abuse of another child who was, at the time, a member of the alleged abuser’s family; or family violence: s 61DA(2). Obviously, if the presumption does not apply, then there is no requirement to consider whether it is rebutted on the evidence under s 61DA(4).24 However, as indicated above, the court may still find it is in the child’s best interests for there to be ESPR.25 This exception is also discussed at 8.62.

9.7 Assuming the exceptions do not apply, what are the circumstances in which a court is likely to find the presumption rebutted; that is, when is it not in the child’s best interests for the parents to have ESPR? Perhaps the most common examples are where the parties are simply not able to communicate in any effective way about the relevant matters,26 or there is generally a highly conflicted parental relationship. In Mellick & Mellick,27 the parents both sought an order for ESPR but the trial judge found, on the evidence, that the presumption was rebutted. On appeal, the Full Court upheld the finding, noting his Honour had a large body of evidence where important decisions made by the parents about the children were contrary to the children’s best interests and where their inability to communicate and agree on matters of real significance to the children’s immediate and long term welfare compromised their best interests. In addition, his Honour specifically doubted that had he made an order for equal shared parental responsibility, the parties could have carried out their obligations under that order [to consult, etc.].28

Of course, where primary care of a child is given to a nonparent, then it is also likely that the presumption will be rebutted.29 Another example might be where a parent has voluntarily played only a minor role in a child’s life. [page 557] It is not sufficient, to rebut the presumption, simply to show that it will be easier for third parties (schools, hospitals, etc.) if one party is given responsibility for one, or more, major long-term issue/s.30 9.8 Finally, it seems to be accepted that an order for ESPR (presumably whether arising from the application of the presumption or not) must include all major long-term issues: Pavli & Beffa.31 That is, if even one area of long-term decision-making is not shared equally, then the order cannot be framed as ESPR.

The operation of s 65DAA and shared parenting 9.9 Section 65DAA had no predecessor in the FLA prior to the 2006 amendments. The requirement that decision-makers start by considering, where practicable, 50/50 shared physical care represents a marked departure from the way parenting decisions have historically been made by the Family Court. As we discussed in Chapter 8, a primary issue leading to these reforms was a concern that, post-separation, children were disadvantaged by not being cared for by both parents, and it was also recognised that many children were losing touch with their fathers. Some therefore claimed that the Family Court was simply biased in favour of mothers. Before turning to consider how s 65DAA operates, it is important to understand why mothers have historically been so ‘successful’ when a custody dispute arose. In this context, we have also included an overview of ‘attachment theory’ and some comments on the use of social science research in the making of parenting orders.

The historical preference for mothers as custodians 9.10 At one time, the courts, when faced with the competing claims of a mother and father, applied a principle in favour of the mother known as the ‘preferred role of the mother’. In 1865, Sir John Romilly MR stated this ‘principle’ in its strongest form: No thing, and no person, and no combination of them, can in my opinion, with regard to a child of tender years, supply the place of a mother, and the welfare of the child is so intimately connected with its being under the care of the mother, that no extent of kindness on the part of any other person can supply that place. It is the notorious observation of mankind that the loss of a mother is irreparable to her children, and particularly so if young. If that be so, the circumstances must be very strong indeed to induce this court to take a child from the guardianship and custody of her mother.32

[page 558] In putting forward this position, the court saw itself as acting in the best interests of the child which was seen as favouring the mother in the case of young children, subject to any disqualifying or countervailing factors. The mother’s preferential position was thought to be even stronger where young or growing girls were concerned.33 This presumption prevailed for a long time.34 9.11 Support for this approach was drawn from research demonstrating the devastating effects that maternal deprivation can have, particularly on a very young child.35 However, later research showed that it is not the biological relationship of mother and child that, when disturbed, necessarily gives rise to ‘maternal deprivation’; rather, what is important is the attachment resulting from day-to-day interaction which builds an important psychological relationship between child and parent: see further, 9.16ff. Over time, the Family Court came to accept that it was the psychological relationship built through attachment that is important rather than the biological tie; however, the ‘preferred role’ of the mother still surfaced occasionally, based really on the application of judicial ‘common knowledge’. On occasions, this was preferred over the evidence of experts to the contrary.36 9.12 In spite of the occasional decision like this, the Full Court of the Family Court firmly discarded the ‘preferred role of the mother’ principle fairly early in the life of the FLA.37 After this point, placement of the child had to be determined in accordance with what the court perceived to be in the best interests of the child and not from any preconceived notion in favour of one or other parent.38 In Australia, the most authoritative pronouncement to this effect is the decision of the High Court in Gronow v Gronow.39 The Full Court of the Family Court had, by a majority (Watson SJ, Joske J; Fogarty J dissenting), reversed a

decision at first instance by Evatt CJ who had given custody to the father. The mother’s appeal to the High Court was based, in part, on the argument of the preferred role of the mother. The High Court held that there was no principle or presumption that a young child, particularly a female, is best left in the custody of the mother. [page 559] 9.13 Quite apart from any supposed biological considerations affecting the respective roles of father and mother in relation to a child, the former attitude favouring the mother, particularly where the child was young, was based on the accepted role expectations that society entertained for men and women. On this view, it was considered ‘natural’ that a young child’s needs would be better met by a mother because those needs were of a kind that came within a woman’s supposed expertise. Those ‘needs’ involved the performance of domestic chores, such as washing and cleaning, cooking and other routine household tasks. While statistically speaking, these tasks are still predominantly allocated to women in many households, such a division of labour should not be assumed.40 It is, however, still generally the case that women, even where they are in employment, carry the greater share of child-care and child-rearing responsibilities. It is this involvement with a child that is significant in building a psychological bond between parent and child. As a matter of practical reality, a parent’s greater involvement with the children will be a relevant consideration, at least in so far as it impacts on the additional considerations to be taken into account under s 60CC(3): in shaping the wishes of the child (s 60CC(3)(a)); the nature of the child’s relationship with the parent (s 60CC(3)(b)); and the likely effect of separation from that parent: s 60CC(3)(c). In this light, it is not surprising that in the

past, in the majority of contested cases, the child has been placed in the primary care of the mother.41 9.14 The fact that women have historically been more ‘successful’ in contested child disputes has, as we have indicated, given rise to claims from some quarters that the family courts discriminate against fathers.42 While, on the whole, such claims do not appear to be justifiable43 and have certainly not been the main reason behind the greater success of women in contested cases, there are undoubtedly instances where men have been discriminated against due to the gender bias of the judge and a stereotypical approach to men’s and women’s roles. [page 560] One such example was McMillan v Jackson.44 The Full Court of the Family Court upheld an appeal from a decision at first instance that had awarded custody of a child to the child’s maternal great-grandmother in preference to the father. The Full Court found that clearly influential in the trial judge’s decision had been his Honour’s approach to the father’s receipt of social security and the father’s decision to stay at home to look after the child, with adverse conclusions having been drawn against the father on these grounds. The Full Court held that the trial judge’s preconceptions as to paternal role models were unacceptable and would effectively disqualify any father, who wished to give up work and become a full-time parent, from ever succeeding in a custody application in respect of his children where there was a viable female custodian or a male one not dependent on social security. Further, it was held that the Family Court, above all other courts, has the obligation and responsibility to reflect community standards and opinions subject only to the FLA itself, and that the public at large would not support the trial judge’s views:

Whilst a trial Judge does not, and is not expected to leave his or her common sense and worldly experience outside the door of the court, a Judge must leave outside the court any pre-conceived notions which he or she may entertain, as a private individual, about the roles which males and females ought to adopt in society. With all due respect, it appears to us that this is what his Honour failed to do in this case.45

Note also R & B & Separate Representative,46 where Nicholson CJ held that the comments made by the trial judge as to the father’s lack of ‘instinctive insight’ into the needs of the children were suggestive of a gender-stereotypical view that a father, as distinct from a mother, is likely to display a lack of instinctive empathy for the welfare of young children. However, given the broad discretion afforded to judges in this area, in the absence of some clear statement by a judge showing a preference by reason simply of gender, it would generally be difficult to make out a claim of gender bias on appeal. Marriage of Pannell47 provides a case in point. The father in this case appealed an award of residence to the mother partly on the basis of gender bias. On reviewing the trial judge’s decision, the Full Court unanimously found that there was no evidence of bias and that the judge’s decision was open to him on the evidence. The question of maternal preference was also raised in Re Evelyn:48 see 7.40. This case involved a surrogacy agreement, whereby Mr Q inseminated Mrs S with [page 561] the intention that the resultant child (Evelyn) would live with Mr and Mrs Q. Some time after Evelyn’s birth, Mrs S took the child and a legal dispute ensued as to where Evelyn should live. The trial judge found in favour of the biological mother, Mrs S, granting joint long-term parental responsibility, and contact, to the Qs. The trial judge’s findings included, among other things, that Evelyn would ‘suffer problems relating to issues such as

abandonment and identity during her adolescence and that Mrs S was best equipped to deal with those problems’.49 On appeal, counsel for the Qs argued that the result of this finding was that, save for in exceptional circumstances, biological mothers would always succeed in disputes of this nature. The Full Court held, however, that the trial judge’s decision established that he was weighing up the evidence as to the personal qualities of the parties and their situations, and, having heard the evidence, was in a particularly good position to do that. Despite conflicting expert opinion, the trial judge had also accepted evidence to the effect that ‘the optimum environment within which Evelyn can deal with the longer term issues is in the home of her biological mother’.50 On this point, the Full Court said: Speaking for ourselves, we may not have accepted this evidence as readily as his Honour did, nor may we have drawn the same conclusions. However, it was, in our opinion, open to him to do so. … Notwithstanding that the present case concerns a surrogacy situation, it remains clear, as a matter of principle, that there is no presumption in favour of a biological parent nor any presumption in favour of the biological mother where the child is female. In our view, his Honour correctly applied this approach in the present case. While it is true that he ultimately gave the biological mother a preferential position, he did so on the evidence before him in the particular circumstances of this case and after considering the various parenting capacities of the persons concerned, and the opinions of the expert witnesses on the subject.51

9.15 Thus, rather than gender having provided women with an unfair advantage in parenting disputes, it was the fact of prior parenting experience, and the relationship that mothers developed with their child as a result, that was so influential in many cases. Also, as discussed at 9.46–9.49, the significant weight that judges have historically placed on maintaining the ‘status quo’ benefited pre-separation primary caregivers. It was accepted wisdom that it was generally not in a child’s best interests to substantially disturb the existing pattern of parenting. These considerations dramatically improved the chances of women where parenting disputes arose.

[page 562] However, it must be noted that precisely the same considerations could apply to the benefit of a father who had been the primary caregiver. All else being equal, a child who had been primarily cared for by one parent before separation, was very often placed primarily with that parent after separation. The fact that mothers were generally the primary caregivers of children before separation was what gave them a statistical advantage in a parenting dispute.

Attachment theory 9.16 Since a dispute concerning where a child shall live must be decided according to the child’s best interests, psychological evidence as to the nature of the attachment a child has to his or her parents, and the impact on the child of any disruption of that attachment, can be very influential despite only being listed as ‘additional’ considerations: s 60CC(3)(b) and (d). As we have indicated above (see 9.10), the growing appreciation of what is known as ‘attachment theory’ has been significant in shaping the exercise of discretion in parenting disputes. That continues to be the case. In McCall v Clark,52 the Full Court noted the difficulty for a federal magistrate in determining parenting applications concerning a young child in the absence of expert evidence ‘about stages of child development and attachment theory’. This raises the difficult question of precisely how social science research may be properly utilised by decision-makers: see further, 9.20. 9.17 Attachment theory is based on the premise that the relationship between an infant and their primary carer affects personality development and forms the basis for the child’s future relationships. Attachment refers to that unseen emotional state, which exists concurrently within the child and within the carer.53 Successful early attachment of babies to the primary carer (usually

the mother) is seen as critical to the individual’s capacity to form, maintain and successfully cope with the termination of relationships, throughout the life cycle.54 However, when a young child’s relationship with the primary carer is disrupted, this is experienced as repetitive trauma by the child, as infants are not just physically [page 563] dependant on the primary carer to meet their need for food, clothing and shelter, but emotionally dependant as well, requiring the proximity of this person on an ongoing basis in order to feel safe and secure.55 Attachment theory was first postulated by Bowlby,56 who suggested that psychoanalysis, the dominant approach at the time, did not take sufficient account of actual trauma experienced by the developing child and the effect this has on the development of personality. Bowlby’s recognition of the effect of early trauma on infants, particularly in the form of separation from their primary carer, and his understanding of grief as a process, rather than an event, made a significant contribution to developmental psychology. Rutter,57 building on Bowlby’s work, studied closely the mother–child interaction. He found that it was the quality of the mother’s response to the child and the ensuing interaction between them, rather than simply the mother’s presence, which was the determining factor in the quality of attachment. Furthermore, he made the important distinction between privation (the absence of stimulation) and deprivation (the loss or removal of stimulation). He noted that it is privation — such as that experienced by institutionalised young children, who have little interaction with unemotionally involved multiple carers — that leads to serious developmental problems, and ultimately to long-term emotional and behavioural problems, which affect

socialisation. In deprivation, it is the removal of stimulation, or more accurately, the disruption of an emotional bond already established with the child, which causes the distress in the infant. Rutter recognised that maternal care on its own was not sufficient to meet the child’s needs, because the child also requires the presence of the significant object of attachment to the child (whom he also recognised did not necessarily have to be the mother). As knowledge built about the psychological development of infants, Winnicott58 began to examine the dynamic relationship between the child and his or her mother. He spoke of the necessary ‘ego attunement’ that the ‘good-enough’ mother exhibits towards her infant child, so that she supports the development of her child’s ego in a way that strengthens the child and enhances the development of the child’s true self. He also examined the role of the child in the family, and proposed that the relationship the mother encourages with the father typically [page 564] helps the child to move away from dependence on her, promoting the formation of relationships with others, such as siblings, grandparents, and close family friends, so that eventually the child is able to form relationships in the wider community and become independent. Advances in neuroscience have now provided physical evidence of how early social events may alter the physiological structure of the human brain, thus affecting its future responses to a range of environmental stimuli, including interpersonal relationships. It is now understood that trauma — including disrupted attachment, experienced in the critical first two years of life, when the brain is developing at a rapid pace — may be imprinted into the neurobiological structures that comprise the brain, and therefore have far-reaching effects not only on the individual’s capacity to

experience emotions such as compassion, empathy and attachment, but also on their vulnerability to psychopathology59 and their ability to regulate both affect and behaviour.60 This has implications for how the individual functions in relationships and has particular relevance to the understanding of interpersonal violence. In addition, neuro-biological theory now suggests that the trauma of witnessing violence, for example where there is violence between parents, or experiencing child abuse, does not simply cause emotional damage to children, but can also cause lasting changes in the physical structure of a young brain.61 Obviously, in a violent household, where the mother’s attention is taken up with issues of safety and survival, she may be unable to focus on the needs of that child in a way that enhances his or her development, and therefore it is possible that negative consequences may ensue for the child, even though the mother may not intend for this to occur. In summary, the core of the suggestions made by attachment theorists is that it is the predictability and consistency of the parental (usually, but not necessarily, maternal) response that allows the child to develop an integrated and individuated sense of self and of other, and ensures the development of a healthy, well-integrated personality. [page 565] Research has also shown that women may be more biologically more suited than men to engage in the physical non-verbal behaviours known to be essential to the forming of this primary attachment bond in the young child. They have ‘an enhanced capacity to more effectively read nonverbal communication and to empathically resonate with emotional states than men’.62 For this reason the mother usually has a greater impact on the child in the first 12 months, when the right hemisphere of the brain (the

hemisphere associated with socio-emotional learning) is dominant, and thus the primary attachment is likely to be to her, with separation eliciting a stress response. However, as the child develops, if the father is engaged in regularly caring for the child, in the second year — when the left brain experiences a growth spurt — the father’s arousing play engages the child in increased exploration of the physical world and the child will bond to him, so that separation will elicit a stress response similar to that elicited by separation from the mother.63 Attachment theory is not static, but continues to evolve with contributions from a range of therapists, researchers and authors from a variety of disciplines, including psychiatry, psychology and neurobiology. It continues to shed light not just on how personality develops, but also how it may develop differently according to gender and psycho-social context. From this brief discussion, it can be seen that decisions as to how the parenting of a young child will be shared between two people need to reflect an understanding of the potential consequences for a child of separation from either parent. However, that is not to suggest that attachment theory should be determinative of any particular outcome in a given case. Indeed, there continues to be academic debate over what the research means in the context of parenting decisions involving very young children.64 The important point is to understand the close link between social science research and the resolution of a parenting dispute.

Research on the benefits to children of shared parenting 9.18 Part VII of the FLA reflects an implicit assumption that shared care arrangements — and equal shared physical care in particular — are good for all children. Simply reflecting on what we know about attachment theory (see 9.16–17) must call that assumption into question. Long before the 2006 amendments

promoting shared parenting were introduced, there was evidence to indicate that: … the best interests of children after parental separation are most strongly connected to the quality of parenting they receive, the quality of the relationship

[page 566] between their parents, and practical resources such as adequate housing and income — not any particular pattern of care or amount of time.65

9.19 In a comprehensive review of the literature on shared time parenting post-separation, Fehlberg and colleagues66 draw three major conclusions. First, that it remains the case that the amount of time each parent spends with the child is not the key determinant of success for that child; rather, the matters referred to above are the most important determinants.67 Second, those children who do benefit from shared time parenting are more likely to do so because those ‘families who opt for shared time parenting tend to be well-resourced and parent cooperatively, flexibly and without reference to lawyers and courts’,68 rather than because of any particular time sharing arrangement. Finally, they conclude: There is mounting evidence … that shared time is more risky for children than other parenting arrangements where there are safety concerns, where there is deeply entrenched inter-parental conflict and/or when children are very young. These circumstances are likely to be evident in cases where legislation needs to be used to make a decision. Ironically, legislation promoting shared time is likely to be most directly applied in contexts where shared time is least likely to be beneficial for children.69

In reaching these conclusions, Fehlberg and colleagues note that, while shared parenting has not increased significantly in the general population since the 2006 reforms, judges are now far more likely to order shared time parenting and that a significant minority of children in such arrangements were in families where there was high inter-parental conflict, a history of violence or

safety concerns.70 Research is also indicating that the 2006 changes to the legislation may be making [page 567] it harder for lawyers to encourage some parents, especially fathers, to agree to child-focused outcomes, because of perceived parental rights to shared time.71 In light of the evidence available, one might think that s 65DAA would be reviewed.72 However, at this stage that does not seem likely.73

The use of social science research as an aid to the exercise of discretion 9.20 It is well recognised that social science research can be very useful in assisting family court decision-makers in resolving childrelated disputes. Indeed, judicial officers are regularly provided with training which can include educating them on relevant research literature. In Family Violence Best Practice Principles,74 a document developed by the Family Court of Australia and the Federal Circuit Court, direct reference is made to published social science research as valuable in assessing factual matters relevant to children and family violence. One way in which exposure to such research is useful is that it improves the ability of decision-makers to understand the evidence given by expert witnesses. However, some decision-makers have independently referred to social science research in reaching their conclusions as to what is best for a child. The Full Court has expressed concern about this practice.75 Very often, social science research is not unanimous on a point.76 Where there is unanimity, a judge may be able to take judicial notice of a matter. Under s 144(1) of the Evidence Act

1995 (Cth), proof is not required about ‘knowledge that is not reasonably open to question and is … common knowledge … or … capable of verification by reference to a document the authority of which cannot reasonably be questioned’. Judges may ‘acquire’ such knowledge as they see fit (s 144(2)), but must accord the parties the opportunity of making submissions on the matter: s 144(4). For social science research to achieve the status of common knowledge, [page 568] the High Court has held that a court would need to have evidence before it on which it could conclude (after hearing any submissions from the parties) that: … the methods used in the studies … or the results expressed in the articles … are methods or results that have attained such a degree of general acceptance by those in the relevant disciplines as would permit a court to take judicial notice of some general proposition about human understanding or behaviour said to be revealed by the published literature.77

Thus, it would seem it is not enough to lead the social science research itself; evidence would need to be led about that research to establish its status. However, in McGregor & McGregor78 the Full Court expressed the view that: In practice there would be few issues in respect of which reference to extrinsic materials would not be ‘reasonably open to question’. This we think would be particularly so in relation to social science issues in parenting proceedings.79

Research literature is of course incorporated into decisionmaking through its use by experts. Experts may form conclusions as to what is best for a child based in part on their understanding of relevant research. This is ‘opinion evidence’ and can be tested by the parties through cross-examination. However, for the reasons set out above, problems arise where the decision-maker decides to appraise themselves of research

literature and then explicitly rely on it in reaching their decision. In the case of Salvati v Donato80 the federal magistrate, after citing a number of published articles, said: This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.81

After highlighting that the federal magistrate could not take judicial notice of this material, the Full Court appeared to accept the possibility that research could be introduced by the decisionmaker, so long as the parties were afforded procedural fairness; the research must be put to the parties for submissions.82 This had not happened in this case. [page 569] In a recent decision addressing this issue, McGregor v McGregor,83 the Full Court made it clear that decisions must be based on evidence; therefore, for research literature to be relied on in decision-making it must be introduced as opinion evidence,84 rather than being applied later by the decision-maker to the evidence. Among other things, this will ensure that the decisionmaker turns their mind to how procedural fairness will be ensured and how the evidence will be used.85 It was not permissible for the ‘content of the articles … [to later become] the prism through which the evidence was viewed and its complexion determined’.86 Thus, the legal position is that a judge can only explicitly refer to research literature in two ways. Either judicial notice is taken of it, or the literature is introduced by one of the parties, an expert or the judge themselves, in which case procedural fairness must be afforded to the parties by allowing them to make submissions in relation to the weight that should be placed on that literature. Having said this, it is patently clear that judicial decision-making

may well be influenced by other literature. An obvious example is the intended influence of the Family Violence Best Practice Principles; that is, a judge’s understanding of the evidence will inevitably be informed by their understanding of a range of matters relevant to children and parenting, including the social science literature to which they have been exposed. However, an appeal will only lie where the judicial officer makes it clear, either through what they say in court or in their reasons, that they have relied on the relevant social science literature and the parties have not been afforded procedural fairness in relation thereto.

Section 65DAA and shared parenting 9.21 Section 65DAA applies when an order for ESPR is made (whether as a result of the application of the presumption in s 61DA or not). It requires the court to consider, first, whether equal shared physical care is in the child’s best interests and then, if it is, whether it is practicable. Next, the court must consider substantial and significant time with both parents in the same way (see further, 8.63). Technically, these allocations of parenting time must be considered, whether or not the parents seek such arrangements. However, it is to be expected that where, for example, neither parent proposes equal shared care or substantial and significant time with both parents, then the court will not devote much attention to such an outcome.87 As the Full Court said in French & Fetala,88 the depth of analysis: will depend upon the issues joined between the parties. Where … neither party suggests that either of the specified types of order is in [the] child’s best interests,

[page 570] and their position is entirely concordant with the existing care arrangements and with expert evidence, a consideration of the section’s prescribed periods of time might be scant. To borrow from Mahoney JA’s quotation of Lord Scarman in a different context, the nature and extent of the requisite consideration of s 65DAA

might be to ‘merely salute it in passing’ … In a particular case, those same considerations might lead to the requisite consideration being inferred from what is otherwise said in the judgment.89

Moreover, where the court accepts the parents’ agreement on certain legal or factual issues, then the court can be taken to have addressed the relevant legislative considerations, thus narrowing the inquiry to the matters in contention: SCVG & KLD.90 There is no doubt though, that where the issue is in contention, s 65DAA requires active consideration by the decision-maker of what it would mean for the child to live in an equal shared care arrangement or an arrangement where both parents have substantial and significant time with the child. In McCall v Clark,91 the Full Court upheld an appeal from the Federal Magistrates Court partly on the basis that the federal magistrate hearing the matter had failed to address these proposals directly in his reasons.92 9.22 Where substantial and significant time is appropriate, achieving this may not be just a matter of framing an order that complies with the temporal definition of ‘substantial and significant time’ set out in s 65DAA(3). This subsection merely prescribes a minimum requirement (ie a mixture of weekend days, holidays, weekdays, special events, and so on). The orders must, in the factual context, amount to ‘substantial and significant time’. Accordingly, the Full Court upheld an appeal in Eddington & Eddington (No 2)93 where orders technically complied with s 65DAA(3) but, due in large part to extended periods of no contact, nonetheless failed to provide the children with ‘significant’ time with their father. In essence, the time they had with him was undermined by long absences. So, for time to be ‘substantial and significant’ with a parent, it is not simply a matter of a certain quantum of contact — this is clear from the terms of s 65DAA(3); the duration of contact and how it is structured are also important. If one connects this to the firstmentioned object of Pt VII — ensuring children have, to the maximum extent consistent with their best interests, the benefit

of a meaningful relationship with both parents (s 60B(1)(a)) — it seems obvious that decision-makers must consider carefully how their orders maximise the [page 571] parent–child relationship. This is not just a question of maintaining some contact between parent and child, but trying to ensure that contact is ‘substantial’ and ‘significant’. Faulks J in Keyush v Dhupam94 noted that ‘significant time’ includes time that permits parental involvement in daily routines and time that makes it possible for a parent ‘to have the opportunity to engage in activities and events … that are themselves to be regarded as significant and substantial’. 9.23 When considering whether to order equal parenting time, or substantial and significant parenting time to a parent, the court must be satisfied that such orders are ‘reasonably practicable’: s 65DAA(1)(b) and (2)(d). In deciding if this is the case, the court must turn its mind to the matters set out in s 64DAA(5), which includes the catch-all ‘such other matters as the court considers relevant’: s 64DAA(5)(e).95 The importance of not overlooking the question of the ‘practicability’ of shared parenting orders was highlighted by the successful High Court appeal in MRR v GR.96 The parents in this case had moved from Sydney to Mt Isa for the father’s work. On separation, the mother wished to relocate with the child to Sydney. At first instance, Coker FM had ordered that the child be in the equal shared physical care of the parents in Mt Isa. The High Court found that the facts of the case did not support a conclusion that this arrangement was ‘reasonably practicable’ because the mother had limited employment prospects in Mt Isa, she could only find (and afford) accommodation in a caravan park, and she was despondent and isolated. Thus, an order for

equal shared care could not be made. It is notable that the considerations relevant to this decision went beyond the matters listed in s 65DAA(a)–(d).

Relevant considerations in the exercise of the court’s discretion Introduction 9.24 Determination of a child’s best interests, for the purposes of making a parenting order, must be undertaken in accordance with the various relevant provisions, but, as in other areas of family law, the court’s powers are highly discretionary — each case must be decided on its own facts. Inevitably, this involves, to some extent, a subjective determination, which in turn cannot help but depend on the values and attitudes of the decision-maker. [page 572] As a consequence of the discretionary nature of this jurisdiction, courts have historically rejected any explicit presumptions in determining what is in a child’s best interests; for example, that the best interests of a child, particularly a young child, are promoted by placing the child with his or her mother (the socalled ‘mother principle’ or ‘preferred role of the mother’): see 9.10–9.15. Similarly, there will be no presumptions against a party on account of particular circumstances. As stated by the Family Court on numerous occasions, and indeed the High Court,97 there are no presumptions or onuses deriving from the cases — simply factors which in a particular case may have more or less significance, depending on the circumstances of the case. The modern exception to this position, of course, is the

rebuttable presumption of ESPR: s 61DA. Also, the creation of two levels of considerations, primary and additional (in s 60CC: see 9.26), may alter the weight accorded to a relevant factor. However, these provisions do not alter the fact that, at the end of the day, the decision-maker must still make the decision that promotes the child’s best interests, and there is a wide discretion to decide what is in the best interests of the particular child.98 Having said that, there is a question as to whether the court can make ‘binding rules’ or ‘legitimate guidelines’ that limit the exercise of discretion. We have discussed at 14.2ff the High Court’s conclusion in the 1986 case of Norbis v Norbis99 that superior courts can make legitimate guidelines that should normally be applied in exercising discretion. While Norbis dealt with an appeal relating to the exercise of discretion under s 79 (which permits the court to alter property interests), the comments of the High Court apply generally to discretionary decision-making, and thus apply equally to the discretionary power to make parenting orders. However, as became clear in the Full Court decision in Hoffman & Hoffman100 (also a property case), it is difficult to identify what principles, if any, have attained the status of ‘legitimate guidelines’, as the Full Court has not generally been specific about this point when developing principles relating to the exercise of discretion. When the Full Court in Hoffman identified a number of principles that might be legitimate guidelines, all of them related to property proceedings (see further, 14.5).101 Given the very different context of property and parenting proceedings, it is not surprising that guidelines are more likely to [page 573] have been developed in relation to property disputes. In the case of parenting disputes, we will only consider this matter in the context of the so-called rule in Rice & Asplund,102 which was dealt

with at 8.105ff. It may be arguable that there are some legitimate guidelines that limit the broad discretion given to the court to make parenting orders in other contexts (eg in respect of the making of so-called coercive orders: see 9.122); however, there has been no judicial consideration of this question, and so we will not address it further.

Findings of credit 9.25 Parenting disputes very often involve a consideration of matters that are not easily corroborated. Thus, the question of the credit of the parties can be very important in the court’s ultimate decision. Indeed, in recent years one sees decisions where a separate section is dedicated in the reasons for judgment to the parties’ credit, with the conclusions as to credit then being referred back to where there is an unresolved difference in evidence between the parties.103 However, the court should exercise caution in making credit findings, particularly adverse ones. The Full Court in Adamson & Adamson104 has endorsed the following comments of Kent J in Carlson & Fluvium,105 which are important in understanding the very difficult task of resolving a parenting dispute: As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw. To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.

[page 574] Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal. These observations apply with at least equal, if not greater, force in parenting proceedings … where the decision does not bring an end to the litigants’ relationship. … [A]dverse credit findings … carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future. Moreover, the resolution of parenting proceedings … usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.106

Primary versus additional considerations 9.26 An obvious question flows from the structure of the best interests checklist in s 60CC: what is the relationship between the primary and additional considerations? Other than their designation as ‘primary’ and ‘additional’ and the fact of the creation of two ‘tiers’, no direct guidance is provided in the Act. As Dessau J pointed out in M & S,107 soon after the introduction of this new version of the best interests checklist: The revised explanatory memorandum [to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)] noted that the intention of separating the primary considerations from the additional considerations was to: … elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act. The memorandum went on to explain that they were elevated as they deal with ‘important rights of children and encourage a child-focused approach’, although it was acknowledged that there may be some instances where the secondary considerations outweigh the primary ones. In the second reading speech in the Senate on 11 May 2006, it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to ‘draw appropriate attention to the objects’ provisions in a positive way’, and likely to assist in directing the court’s attention to those objects …108

Two points emerge from this extract. First, the elevation of the two primary considerations is an attempt to make decision-makers focus more on the objects of Pt VII set out in s 60B — in that sense they give statutory force to those [page 575] objects.109 Second, it was clearly envisaged that the primary considerations would not necessarily trump the additional considerations. Successive Full Courts have concurred that the legislation does not operate so that primary considerations invariably outweigh additional considerations,110 but rather all relevant considerations must be taken into account, with ‘particular emphasis’111 being placed on the primary considerations. However, it is arguable that the introduction in 2012 of s 60CC(2A) alters the position somewhat. That subsection requires the court, when applying the two primary considerations, to give greater weight to the primary consideration directed to the protection of the child from harm. The interpretation of this subsection is discussed further at 9.107. Arising from that interpretation, we suggest that this subsection always requires the court to give the most weight to the protection of the child from harm, and so this primary consideration can never be outweighed by an additional consideration — just as it cannot be outweighed by the other primary consideration.112 In other words, there is no additional consideration that justifies compromising the protection of the child. However, that is clearly not the case in relation to the primary consideration relating to the building of meaningful relationships between parents and their children. An interesting example that illustrates this point was seen in Mulvany v Lane.113 Here, the mother wished to relocate to Hong Kong with her five-year-old daughter. Shortly before trial, it was discovered that her husband

was not the biological parent of the child. Non-parents do not attract the benefit of the first primary consideration114 and so Howard FM, in allowing the mother to relocate, had placed very considerable weight on the relationship between the mother and child, and how relocating, or not, would impact on the mother– child relationship. However, his Honour failed to explore fully, under the additional considerations, the impact of the proposed relocation on the relationship between the child and the man she considered to be her father. Also, and incorrectly, Howard FM had referred to the man as a parent under some of the additional considerations. In upholding the appeal, and remitting the matter for rehearing, it was clear the Full Court considered that an alternative outcome (ie a prohibition on relocation [page 576] to preserve this relationship) was possible, and therefore that the additional considerations might outweigh the relevant primary consideration.

The two primary considerations The benefit to a child of a meaningful relationship with both parents 9.27 The first primary consideration is ‘the benefit to the child of having a meaningful relationship with both of the child’s parents’: 60CC(2)(a). Nothing in the FLA sheds any light on what this actually means, and the rather vague wording of the paragraph has provided the Family Court with something of an interpretive challenge.115 The Full Court in McCall & Clark116 provided some early guidance. After referring to dictionary

definitions of the word ‘meaningful’ and reciting the legislative imperative of adopting a purposive construction of the paragraph, their Honours went on to conclude there were three possible constructions of s 60CC(2) (a) which they dubbed ‘the present relationship approach’, the ‘presumption approach’ and ‘the prospective approach’. It was the last of the three that was held to be the ‘preferred approach’; however, depending on the facts, their Honours said that the present relationship approach might ‘also be relevant’. Their Honours described the present relationship approach as follows: … the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made …117

The prospective approach was described thus: … the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents … (emphasis added)118

Their Honours noted119 that, in reaching their conclusions, they endorsed the comments of Brown J in Mazorski v Albright120 and the reasoning of Bennett J in [page 577] G v C.121 Brown J had held that the word ‘meaningful’, in this context, meant significant; that is, important or of consequence. Thus, a meaningful relationship was one that was ‘important, significant and valuable to the child’ and was to be measured qualitatively.122 Brown J has of course imported a positive aspect to this definition. A relationship can be ‘meaningful’ without being beneficial; for example, an abusive relationship can be important and of consequence, without necessarily being valuable or beneficial. However, because the paragraph refers to the

‘benefit’ of a child having a meaningful relationship with a parent, it seems generally accepted that ‘[t]he word “meaningful” is used in the sense of having some positive impact on the lives of the children’.123 Their Honours therefore went on to say in McCall v Clark that the court’s focus should be ‘on the benefit to the child of a meaningful or significant relationship’,124 noting that usually children will benefit from a significant relationship with both parents. Perhaps the simplest explanation of this section by the Full Court is found in its summary of Bennet J’s findings in G & C: … the enquiry … [is] a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.125

Yet even this is somewhat tautological: if ‘meaningful’ already connotes a positive aspect, how can a ‘meaningful relationship’ not be of some advantage to a child? The difficulty of attributing clear meaning to this provision has been highlighted by the considerable judicial and academic debate that has taken place over this aspect of the 2006 reforms.126 After reviewing the matter in some detail, Chisholm127 has drawn the following conclusions. First, the first primary consideration (s 60CC(2)(a)) and the object set out in s 60B(1)(a), essentially express the same idea. This was clearly the legislative intent, and for this reason the concept has been discussed here under the primary consideration, and not separately in relation to the objects of Pt VII. Second, while the failure to define key terms means they should be given their ordinary meaning, they must be looked at in the context of the 2006 amendments, and therefore they have a more [page 578] precise meaning than is to be found in a dictionary. Third, while

there are different ways to express the concept, a meaningful relationship is one where a parent is ‘actively and positively engaged in parenting’. Finally, Chisholm notes that such a relationship has a range of different components and potential benefits. The message is clear, however. Achieving, or maintaining, a positive and significant relationship with both parents is a very important consideration in making parenting orders. It must be noted that this primary consideration refers specifically to ‘parents’. Thus, it does not apply to non-parent applicants, even where they have been a child’s primary carer for example. However, that does not mean, as Mulvany v Lane128 (see 9.26) shows, that there is any presumptive preference given to parents; in the particular circumstances of a case, a child’s best interests may well be served by maintaining a relationship with a nonparent at the expense of the child’s relationship with a parent (this is discussed further at 9.61).

Protection from harm and family violence 9.28 The need to protect children from physical and psychological harm is also a primary consideration: s 60CC(2)(b). Where the two primary considerations apply, protection from harm must take priority (s 60CC(2A)): see 8.57 and 9.100. The additional considerations also include family violence (whether or not the child is a victim) (s 60CC(3)(j)) and any relevant inferences that can be drawn from past or present family violence orders (s 60CC(3)(k)). Given the considerable interaction between the primary and additional considerations relating to protection from harm and family violence, in the following discussion consideration is given to family violence generally as an issue in contested child proceedings.129 Chapter 3 deals with the available legal options for the protection of victims of family violence. That chapter also discusses the emerging recognition of family violence as an issue

in family law proceedings generally and therefore provides a useful backdrop to the issues discussed in this section. 9.29 Family violence has not always been explicitly recognised as a relevant consideration in parenting decisions. Section 64(1) (va) was introduced to the FLA in 1991 and it required the court to take into account ‘the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child’. It is notable that this section did not explicitly recognise the harm a child may suffer from being exposed to family violence [page 579] committed against someone else in the family, such as a mother or sibling, though such harm could fall within the latter part of the wording. This particular section was repealed, but further amendments made under the Family Law Reform Act 1995 (Cth) strengthened the provisions dealing with family violence. These new sections were quite clear about the relevance of children being exposed to family violence. The best interest checklist, then in s 68F(2), was expanded to require mandatory consideration of: the need to protect children from physical or psychological harm from being subjected, or exposed, to abuse or violence; any family violence involving the child or a member of the child’s family; and any family violence order applying to the child or a member of their family. It was at this time that the terms ‘family violence’ and ‘family violence order’ were adopted.130 Further, para (ca) was added to s 43(1), requiring the court, whenever exercising jurisdiction under the FLA, to have regard to ‘the need to ensure safety from family violence’. 9.30

The

Family

Law

Amendment

(Shared

Parental

Responsibility) Act 2006 (Cth) made further changes, elevating the first of those violence considerations to a ‘primary’ consideration: s 60CC(2)(b). The remaining two sections were left in the ‘additional’ considerations category (s 60CC(3)(j) and (k)) and the objects, as set out in s 60B(1), were expanded to include ensuring the child’s best interests are met by ‘protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’. The definition of ‘family violence’ was moved to s 4(1). As with other changes potentially affecting victims of violence in the 2006 reforms, these amendments were the subject of criticism. (We have discussed this elsewhere: see 3.2 and 8.14–8.15). The result was that in the most recent reforms to Pt VII, effected by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), further changes were made to strengthen the protection given to victims of violence and to try to ensure that parents were not discouraged from bringing forward true claims of violence in parenting disputes. The key changes were: the introduction of s 60CC(2A); the amendment of s 60(3)(k) to its current form, which permits consideration of all family violence orders;131 a new definition of ‘abuse’ in s 4(1); and a new definition of ‘family violence’ in s 4AB. These provisions only apply to matters filed after 7 June 2012, and so there is limited case law available that considers their application and interpretation. 9.31 The provisions in s 60CC(3) must be read together with ss 60CF and 60CG. Section 60CF imposes a duty on a person who is a party to the proceedings to [page 580] inform the court of any family violence order, of which that person is aware, applying to the child or member of the child’s

family: s 60CF(1). Pursuant to s 60CF(2), persons who are not party to the proceedings who are aware of a relevant family violence order may inform the court of the family violence order. Failure to inform the court of a family violence order does not affect the validity of any order made by the court: s 60CF(3). Section 60CG states that in considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order: (a) is consistent with any family violence order; and (b) does not expose a person to an unacceptable risk of family violence: s 60CG(1). The resolution of unavoidable inconsistency between contact orders and family violence orders is dealt with in Div 11 of Pt VII, and is discussed at 8.109ff. The effect of s 60CG(1)(b) is to require the court to extend its inquiry beyond the best interests of the child or children, also taking into account the risk of family violence to other persons, subject to the child’s best interests being the paramount consideration. Subject to that qualification, the risk of violence to other family members (eg the residence provider) must be considered and the court must ensure that the order does not expose that person to an unacceptable risk of family violence.132 In determining what constitutes ‘an unacceptable risk of family violence’, the interpretation of ‘unacceptable risk’ by the High Court in M & M133 in the context of child sexual abuse will be invoked: this is discussed in detail at 9.103ff.134 This would suggest that the existence and magnitude of the risk of violence must be taken into account and the court must balance the risk of family violence to a person against the possibility of benefit to the child from parental contact.135 Section 60CG(2) states that, for the purposes of s 60CG(1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order. 9.32 The amendments effected by the Family Law Reform Act 1995 (Cth) represented a milestone in the recognition of the

problem of domestic violence in our society. While there had already been case law developments to this end (see discussion below), the express reference to family violence in the legislation [page 581] is in accordance with the recommendations of the Australian Law Reform Commission that the direct and indirect effects of family violence be accorded greater legislative recognition and that steps be taken not only to protect children from family violence, but also to minimise the risk of violence for women.136 As a result of the various reforms, the Family Court is required to ensure that where the matter is brought to the attention of the court, the issue of family violence is taken into account fully when determining what is in the child’s best interests. 9.33 Let us turn to how judges have dealt with family violence in making parenting decisions. In spite of the high incidence of domestic violence in our society, for a long time this appeared to be a ‘hidden’ issue in custody determinations. There are instances in the early authorities where evidence of violence was virtually disregarded by the court. One such example is Marriage of Heidt.137 Here, a history of violence by the husband against the wife was treated as irrelevant in evaluating the competing claims of the parents, Murray J commenting that there was no suggestion that the father had treated his children with the violence with which he had treated his wife.138 Indeed, the likelihood is that in many cases the issue was not even raised due to misplaced interpretations of the ‘no-fault’ philosophy of the FLA: certainly, the Act was intended to abolish the fault-based doctrines of the legislation that preceded it, but the very clear mandate on the courts to have regard to the welfare of the child as the paramount consideration (former s 64(1)(a)) was already justification enough for admitting evidence in respect of a party’s violent behaviour in

contested child proceedings, where that conduct was shown to have an effect on the welfare of the child. 9.34 In more recent years, and before the first legislative reforms referred to above, there was a discernible change in the court’s approach, with increasing recognition being given to the importance of domestic violence as an issue in contested child proceedings. This change in approach was more than justified in view of the growing body of literature at that time documenting the harmful effects of violence on children, not only where they are themselves victims of violence, but also where they are exposed to violence; for example, by one parent against the other. For reference to relevant materials concerning the effects of violence on children, see 3.32. One of the first cases to indicate a more realistic approach to the issue of violence was Marriage of Jaeger.139 The appeal in this case centred on the refusal by the trial [page 582] judge to admit into evidence an affidavit sworn by the wife’s sister and put before the court by the husband, which was directed to the question of the possibility of violence in the wife’s household, on the part of her de facto husband. At first instance, the wife had been awarded custody, the trial judge stating: I am not really interested in whether the home is a peaceful haven or a bit … rougher than that, I might put it that way. I do not think that that is what affects children or is likely to affect this child.140

On appeal, the husband argued that the failure by the trial judge to admit the affidavit meant that there was a mistrial of the proceedings. Upholding the appeal, the Full Court held that the trial judge had erred in rejecting the evidence. It was held by the Full Court

that the grounds which the trial judge set out and the views which he expressed in relation to the relevance of violence in a case of this sort were not correct. In the opinion of their Honours, the affidavit evidence was relevant because it involved the question whether the child might go to a household where violence may be occurring towards an important figure in his life, namely his mother. The court found that the exclusion of this evidence by the trial judge could have had an effect on the ultimate outcome and a retrial was ordered. Other early instances where the Family Court has taken into account the violent and abusive conduct of a party include Marriage of Merryman141 and Marriage of Patsalou.142 In the latter case, the Full Court endorsed the proposition found by the trial judge that the making of derogatory or denigrating remarks and the infliction of violence by one party on another are relevant matters to be taken into account in cases concerning the custody of, or access to, children and would reflect poorly on that party’s capacity to act as a positive role model for the children. 9.35 The most comprehensive pre-1996 analysis of the relevance of violence in contested child proceedings is found in the judgment of Chisholm J in Marriage of JG & BG.143 That case involved custody proceedings in respect of the two children of the marriage. In the course of the trial, allegations had been made against the husband relating to physical and verbal violence. This led to argument before the court as to the admissibility of certain passages of the affidavits relied on by the wife and also, generally, as to the importance of the various incidents alleged to involve violence. Having acknowledged the obvious relevance of violence that is directed at children or committed in their presence, Chisholm J commented that other forms of violence may also be relevant to the welfare of children; for example, violence occurring between household members, even though occurring away from the

[page 583] children, may have the potential to cause the children distress and harm where it affects the parenting of the custodial parents. His Honour also drew attention to the many forms of violence and, linked with that, the fact that violence may have quite a different significance in different cases. He went on to say that just as it was wrong to assume that violence can be relevant only if it is directed at the children or takes place in their presence: … [i]t is equally wrong to assume that violent behaviour will necessarily be repeated, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child’s welfare requires, and it will be more important in some cases than in others.144

9.36 It can be seen, therefore, that even prior to the 1996 amendments, judges were beginning to recognise the relevance of family violence generally to the making of parenting orders. Reported decisions after those amendments began to address directly the issue of family violence and its relevance to parenting decisions; however, trial judges did not always attach sufficient weight to violence within the family. In A v A,145 the mother was very seriously physically assaulted, and though she could not recall the event, she strongly believed the father was the assailant. The wife alleged the father had previously assaulted her and there was considerable circumstantial evidence pointing to the father as the perpetrator. The trial judge allowed the father supervised contact with the three young children (to allay the mother’s fears), moving to unsupervised contact in nine months. The mother appealed, seeking no contact, or at worst, supervised contact. The father, who denied having assaulted the mother, had the support of the child representative who argued that even if it occurred, the assault was a one-off event, there was no evidence of any prior assault of the children and, therefore, no unacceptable risk to them of assault. Fogarty, Kay and Brown JJ began by disapproving the trial

judge’s dismissal of previous alleged events of violence as ‘relatively minor’ when compared with the savage event leading to these proceedings. They further disagreed with the trial judge’s approach, which was to focus on the wife’s belief, and whether it was reasonable, as the key issue in relation to contact, rather than the possibility of risk to the children arising from the possibility that the father had indeed committed the crime. In the Full Court’s view, the evidence was clear that the perpetrator of the crime was a ‘violent and disturbed’ person and, as there was a possibility that the father was the perpetrator, there was an unacceptable risk to the children in allowing unsupervised contact. [page 584] Blanch v Blanch & Crawford146 provides another example where a trial judge seriously undervalued the significance of domestic violence to the making of parenting orders. In this case, despite clear evidence of violence by the father to the mother, the trial judge decided that the violence arose from the circumstances of the marriage and was not inherent in the father’s personality. The father was awarded residence of the children in a case the trial judge considered finely balanced. On appeal, the Full Court found the trial judge had failed to take proper account of the compelling evidence of ongoing violence by the husband to the wife and had further failed to consider the potential damage that could be caused to the children by exposure to a violent role model. The trial judge’s apparent attribution of blame to the mother for the violence was also strongly criticised. Further examples of judicial recognition of the significance of violence in making parenting orders include M v M,147 T v S,148 T v N149 and M & L (Aboriginal culture).150 9.37

Reading these cases, one would assume that the combined

effect of the early amendments and growing social awareness of the effects of violence would lead to greater emphasis on the protection of children (and women) in the making of parenting orders. At one level, this was certainly true. For example, it was no longer acceptable to suggest that, simply because a child had not been a direct victim of — or witnessed — violence, violence was not relevant to the question of what parenting orders ought to be made. However, after the 1996 reforms, evidence was emerging that amendments aimed at promoting contact between children and their parents had ‘overwhelmed the provisions relating to family violence in the Reform Act 1995’.151 In her empirical study, Kaspiew152 pointed to the de facto presumption operating after those amendments in favour of contact and posited that only extremely severe violence proved to a high standard would lead a decision-maker to call into [page 585] question whether contact ought to take place, despite growing evidence of the negative implications for children of being exposed to violent parents.153 Thus, when the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) was released for comment, concern was expressed that the position would be shifted even further in favour of contact and away from protecting children from violence.154 In particular, there was a danger that parents suffering from violence would be discouraged by the new provisions from bringing their claims forward. There is now a body of evidence suggesting that the pro-shared parenting provisions introduced in 2006 had the effect of undermining the protection of children from violence: see 8.13–8.15. 9.38 A post-2006 case that highlights this tendency is Mills v Watson.155 Walters FM was faced with an application by the father

to have his seven-year-old daughter and her mother return from Victoria to Tasmania so that the father could re-establish a meaningful relationship with the child (I). The father suffered from a mental illness but did not adhere to prescribed treatments and admitted to using cannabis nearly every day, even though it exacerbated his condition. The father also conceded that he had behaved violently towards the mother and towards the mother of his other child, including in front of I. Walters FM noted that the father, while conceding much of the alleged violent and controlling behaviour, sought to ‘minimise its severity, and its impact on I and the mother’.156 His Honour described the father’s treatment of the mother, while together, as ‘appalling’ and further accepted: the father had exposed the child to serious family violence; the father had historically sought to dominate the mother both physically and psychologically, and he may well do so again if given the chance; the mother suffered from low selfesteem and had ‘long held fears of the father’; the mother felt ‘under seige’, mistrusted the father and had little faith in the court or authorities protecting her from the father.157 In the end, Walters FM did not force the mother to return to Tasmania. However, he did consider that the mother could be ‘fairly criticised’ for [page 586] removing the child from Tasmania,158 and in frustrating contact with the father, that the mother had caused the child ‘psychological harm’.159 His Honour saw the actions of the mother as ‘profoundly damaging’ the child’s relationship with her father.160 What Walters FM did not consider at this point was the possibility that, in fact, it was the history of the father’s behaviour that was the cause of this chain of events; that is, his evaluation of the mother’s conduct failed to consider the father’s responsibility in bringing this state of affairs about, other than to acknowledge

that it explained her actions. However, Walters FM later expressly agreed with the following statement by Wall J in the English case of Re M (Contact: Violent Parent):161 Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. Too often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.162

Walters FM then next considered ESPR and, despite recognising that the father might use this opportunity (as it requires consultation) to abuse or intimidate the mother, made that order. No doubt his Honour was influenced by the mother’s concession that she was prepared to try and give such an arrangement a chance to work, but it is hardly surprising the mother made this concession given the way her protective actions were viewed. Indeed, Walters FM saw the obligation to consult imposed by ESPR as some sort of security against what he considered to be the mother’s abusive behaviour in removing herself and I from Tasmania. While on the one hand a decision such as this shows significant recognition of the impact on the child of family violence, it is also arguable that, in spite of the reference to Wall J’s comments, little real regard was given to the point being made there. Despite the extensive adverse findings about the father’s ongoing behaviour, the mother was still expected to have taken responsibility for that behaviour — by being a ‘friendly parent’ who promoted parent– child contact — and her decision to leave the state and minimise contact with the father was instead seen as emotional abuse. There is no suggestion in the decision other than that the mother acted in response to ‘appalling’ behaviour by the father. [page 587]

This was only one decision from the Federal Magistrates Court and the same outcome might have resulted under the legislation as it stood before 2006. However, close examination of the exercise of discretion in such a case supports the conclusion that the 2006 provisions might lead some decision-makers to promote contact in preference to protecting children from violence. See 3.2 and 8.13–8.15 for further discussion of the 2006 amendments in the context of family violence. 9.39 The next question is what impact the 2012 reforms will have on the making of parenting orders where family violence is an issue. The amendments are clear in two important respects. First, when parenting orders are being considered, and violence has been established, safety and protection of the child must now be given more weight than building meaningful relationships between a child and both their parents. This should provide a clear directive to decision-makers to fashion orders that have, as their first priority, protection from violence. Orders to promote meaningful relationships should be made only to the extent that is possible while still ensuring safety. Second, the new definitions of abuse and family violence make it clear that the court must take a modern approach to understanding the wider context of violence: the different ways it can occur and the various ways children can be exposed to the ill-effects of violence. Moreover, the amendments are designed to help parents feel more comfortable about raising violence and proposing protective care arrangements now that both the ‘friendly-parent’ provision and the mandatory costs order have been abolished: see 8.15. There will, of course, continue to be great difficulty for decision-makers in cases where the existence or extent of violence cannot be determined.163 The amended provisions are therefore likely to have the greatest impact in those cases, like Mills v Watson (see 9.38), where violence is acknowledged by one of the parents or established at trial. Whereas that case shows the difficulties decision-makers face when confronted by two conflicting primary

considerations, the new hierarchy should enable a clear choice to be made to err on the side of protection. However, early indications are that the impact of the reforms may be mixed. In particular, it seems that s 60CC(2A) may not be having as much impact on decision-making as intended. In a review of decision-making post the amendments, Strickland and Murray conclude that, while there are many positives arising from the 2012 reforms: …it is perhaps a little surprising that the reallocation of priorities in the primary considerations has not been accorded the significance one might expect it would be, given the prominence of this particular amendment in the suite of family violence reforms. It is of course speculative but that may be indicative of the

[page 588] emphasis invested in ‘meaningful relationships’ in the 2006 shared parenting reforms and the way in which the importance of a child having a relationship with both parents, even in circumstances where serious allegations of violence have been raised, continues to resonate even in a post-reform environment.164

Certainly, there are judicial and academic statements to the effect that the introduction of s 60CC(2A) has not significantly altered the way parenting cases involving violence should be approached. Conversely, however, there has been judicial recognition that protection of children from harm is now ‘the priority’ consideration.165 We suggest that, where violence is an issue, the correct way for the court to apply the relevant provisions, in light of Full Court statements to date as to the general operation of s 60CC, is as follows: So far as is possible, make orders that seek to ensure the protection of the child from harm in light of the evidence of harm Then, in relation to the remaining ‘best interest’ factors, generally place most weight on the benefit to a child from having meaningful relationships with both parents but where the facts require it, place as much, or more, weight on an additional consideration, and Adopt the same approach whether the matter is an interim or final hearing. (emphasis added)166

Additional considerations Views of the child 9.40 The approach taken under the FLA to the wishes of children has changed over time. Originally, the Act required the court not to make an order contrary to the wishes of a child who had attained 14 years of age, unless the court was satisfied by reason of special circumstances it was necessary to do so. However, the arbitrary nature of this age limit came increasingly to be seen as unsatisfactory, as was the element of compulsion on children of that age to express a view. As a result of these concerns, the FLA was amended in 1983 to remove the reference to a specified age, thus requiring the court to consider any wishes expressed by the child in relation to child proceedings under the Act, and to give those wishes such weight as the court considered appropriate. In addition, a new provision was inserted which stipulated that nothing in the section permitted the court or any [page 589] person to require a child to express their ‘wishes’ (if any) in relation to any matter relevant to the proceedings. 9.41 The word ‘wishes’ (which connotes a preference as to outcome) has since been replaced with the broader term ‘views’. In its current formulation, s 60CC(3)(a) includes specific reference to the child’s maturity and level of understanding. This is consistent with the case law interpretation of the former provision, as well as more general developments in relation to the rights of children; in particular, the landmark case of Gillick v West Norfolk & Wisbech Area Health Authority,167 which has been accepted as good authority in Australia; see further, 8.30ff.168

9.42 In the 2006 amendments, this matter was put into the ‘additional’ consideration category. While it is arguable that this might result in children’s views being given less weight where they do not coincide with some form of shared care arrangement (see 9.26), depending on the facts of the case, additional considerations may outweigh primary considerations. 9.43 Thus it remains the case that the views of children are relevant, but clearly not decisive, and there have been plenty of instances where the court has overridden the expressed wishes of children: see, for example, Allen v Allen; Hargraves,169 where the strongly held wishes of a seven-year-old child were overridden in making an order for custody in favour of a natural parent. However, as Marriage of Joannou170 demonstrates, the court is required to have regard to the expressed wishes of a child, regardless of the child’s age. In that case, which involved four children aged eight, seven, five and four, the trial judge had expressed the view that the evidence of the wishes of children of this age was not particularly relevant and that he was not going to take any notice of their wishes. On appeal, this was one of the grounds on which the Full Court held that the trial miscarried. It was held that the evidence of the wishes of children of this age would not be irrelevant: it may or may not have been helpful depending on factors which could only become clear when a counsellor had seen the children and given a report in relation to these matters. Similarly, in Harrison & Woollard,171 an appeal was allowed on the grounds that the trial judge had given insufficient weight to the wishes of the children, in this case, aged seven and eight. It was held by the Full Court that the wishes of [page 590] children are important and that proper and realistic weight should

be attached to any wishes expressed by children: … the Court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.172

In their joint judgment, Fogarty and Kay JJ commented about the change in approach to the wishes and feelings of children not merely in custody cases, but across the wider spectrum of society generally: The history of the legislation in this court, the Convention on the Rights of the Child … the ‘Gillick-competent’ test … and the general development in society of the concept of the rights of children are examples of this.173

Baker J also delivered a strong judgment in support of giving children’s wishes due weight. After extensive discussion of the psychological literature in relation to children’s wishes, his Honour stated: In my opinion, a child’s wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial judge. Furthermore, if the trial judge decided to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given, particularly if, as in this case, the separate representative submits that the court should give effect to such wishes. The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case … [T]he goal is to take the wishes of children seriously by giving them careful, detailed consideration. To merely regard the wishes of a child in a token manner, or to be dismissive of them, does not accord with the findings of psychologists as to the competence of children to express soundly based wishes and ignores the statutory requirement of s 64(1)(b) of the Act.174

The judgments in this case are a strong indication of the significance to be attached to children’s wishes, subject always to the overriding consideration of the paramountcy principle. Later cases have continued to rely on the principles enunciated in

Harrison; for example, Brear v Corcoles-Alfaro.175 An attempt to argue [page 591] that the principles in Harrison required a judge to act on a child’s validly held wishes was rejected in R v R: Children’s Wishes,176 though it was confirmed that good reasons should be advanced for not doing so. An example of the weight that may be attached to validly held wishes of mature children is seen in ZN v YH & Child Representative.177 In this case, three children (aged 14, 12 and nine at the time of trial) had been living with their mother, who wished to relocate them to the United States, as she had married an American. It is clear from Nicholson CJ’s judgment that his Honour attached significant weight to the views of the children as to their preferred place of residence — Tasmania or the United States — in deciding not to allow the mother to relocate them. Indeed, he met with the children to explore this very point. The particular difficulties that arise in relocation cases are discussed at 9.116ff. One issue that seems to be overlooked by the court at times when dealing with parenting issues involving very mature minors, is the question of whether the child’s Gillick-competence ought to be considered (see further, 8.30ff).178 The point at which a child becomes competent to make a decision, and thus can oust parental authority, may arrive before the child turns 18. Take for example the saga culminating in Roda & Roda (No 2).179 In 2014 the parties found themselves in court180 because the mother wished to send the son, T, who was living with her, overseas for about 10 months to attend an ice hockey sporting academy. T was 15 at the time of the trial but would be 16 during most of the time he was away. The evidence was that T was a very good student and his school had no concerns about the trip, though noted that

being away might cause him to have to repeat Year 11. He had a substantial scholarship for the trip and the mother and her family would provide the balance of any costs. T had competed at state level in the sport and was passionate about it; he was extremely keen to go. The father refused consent and the matter went to court, where it was held that it was in T’s best interests to allow him to go. It seems that T returned to Australia in April (rather than June) 2015,181 but wished to return to continue studying at the overseas academy, and complete his [page 592] high school education there. By the time of the second trial,182 T was 17. Again, the mother and her family offered to pay all costs over and above the continuing scholarship. The father remained opposed to the travel on the basis that T would most likely not secure as high a school leaving score at the overseas academy (his Australian school being a highly ranked selective academic school), and that T’s relationship with his two-year-old sibling would suffer. The court again found in the mother’s favour. While the father acknowledged ‘the reality of a seventeen-year old boy’s views’,183 at no point did the court ask the question whether this particular child — who was found to be very mature and to have coped extremely well with his first trip — had the competence to make this decision for himself. Admittedly this involved the question of where the child would live and overseas travel. However, it seems that if a child can be found to be Gillickcompetent to agree to permanent and invasive surgery, as in the cases of mature children with gender identity dsyphoria (see further, 8.33), then the question ought to at least be asked whether a mature minor such as T can make this decision for himself.

9.44 Section 60CD deals with how the court informs itself of wishes expressed by a child. The court may do so by having regard to anything contained in a family consultant’s report under s 62G(2), by ordering that an independent child lawyer be appointed under s 68L, or, subject to the rules of court, by such other means as the court thinks appropriate. In practice, the use of a report by a family consultant under s 62G is the most frequently used method of ascertaining the child’s wishes. Section 62G(3A) directs the family consultant, in preparing a report, to ascertain and report on the child’s views on the matter that is the subject of the report. Note, however, that no one can force a child to express a view on a matter: s 60CE. This simply means that the family consultant is obliged to determine whether the child has a view they wish to express, and if so, include that in the report. 9.45 Subject to the rules of court, the court has a discretion to inform itself of wishes expressed by a child using such other means as the court thinks appropriate. One option open to a judge is interviewing the child. However, Australian judges, unlike their New Zealand counterparts, are reluctant to exercise their power to talk directly to children. The primary reasons that judges eschew this practice are concerns about their expertise to perform the task properly and procedural fairness to the parties. As one judge expressed it, judicial interviews of children should only happen in ‘special circumstances’, the preference being for the family report to explore the child’s views.184 In a few other cases, judges have appeared more [page 593] willing to consider the practice.185 Those who argue in favour of direct judicial contact with children186 point to the more common use of judicial interviewing of children in New Zealand and

highlight Art 12 of the United Nations Convention on the Rights of the Child 1989 (see 8.2–8.4): (1) States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child … (2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial … proceedings affecting the child, either directly, or through a representative or an appropriate body …

Until the Australian judiciary change their view,187 any shift in practice seems unlikely.

Disturbing the status quo 9.46 In practice, as we have indicated above, one of the most historically significant factors in contested cases was the ‘status quo’ and the presumed desirability of promoting stability in the life of the child.188 There is a legislative basis for considering the impact of changes in care arrangements. Section 60CC(3)(d) requires the court to take into account (as an ‘additional’ consideration): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or

[page 594] (ii) any other child, or person (including any grandparent or other relative of the child), with whom he or she has been living.

For a long time there was widespread agreement among child psychologists that stability and continuity were important factors in a child’s upbringing,189 and this led to increased importance being placed on the dangers that may follow a disturbance of the status quo. So important was this principle that courts would be reluctant to disturb a child who was happily settled in a family

environment, even though the arrangements may perhaps have come into existence as a result of the defiance of a court order. In Marriage of F & N,190 the Full Court dealt with an argument that there was some special significance in the status quo, which if it was to be reversed, required some particularly persuasive circumstances. Nygh J, with whom Evatt CJ and Burton J agreed, said: … the basic flaw of the argument … was to invest the status quo in this case with some particular and special significance existing over and above any of the other factors listed in s 64. There is in my view no justification in the Act to give any of the factors as listed in that sub-section any special significance, the one over the other. Nor is it in my view correct to say that there flows from a satisfactory status quo any presumption which can only be rebutted or displaced by clear countervailing considerations.191

9.47 F & N, which was endorsed in subsequent cases,192 put the status quo argument on a proper footing. The weight to be given to the status quo in a particular case depends on the circumstances: Marriage of Maday.193 In Marriage of Raby,194 the Full Court put forward several matters that may be relevant in evaluating the significance of the status quo in a given case: the age of the child, the length of the status quo, its quality and, in particular, the nature of the child–adult relationships developed within it. 9.48 Nonetheless, as we have pointed out, the weight attributed to a settled status quo — in particular, in favour of a preseparation primary carer — was generally accorded significant weight in determining what parenting arrangement a court would order: see also 9.14–9.15. This consideration played a significant role in justifying outcomes where a child remained primarily with one parent — considerable emphasis was placed on stability and continuity of care. [page 595]

9.49 While any parenting status quo remains a relevant consideration, there is no doubt that, since the 2006 reforms, the weight to be attributed to the benefits of maintaining a status quo has diminished significantly. This is most obvious from the terms of s 65DAA, which mandates a process for considering the sharing of physical care of the child that pays no attention to any status quo. A diminution in the weight attached to the pre-trial status quo would arguably contribute to more shared parenting outcomes in court, which was a clear goal of the 2006 reforms. However, there is another way of looking at the 2006 changes, when discussing status quo. Section 60CC(3)(d) asks the court to consider the effect on a child of physical separation from, among others, the child’s parents. Thus, if a child spent more time with one parent before separation, a shared care order post-separation will reduce the time that child spends with their pre-separation primary carer. It is arguable that the historical categorisation of this as an issue of status quo has been somewhat misleading. In reality, any arrangement post-separation is unlikely to maintain the pre-separation status quo; where parents cohabit and then separate, a status quo cannot usually be maintained. While the pre-separation status quo might well have been that one parent was primary carer, the other parent would very often have seen the child every day and engaged in a range of activities with the child on a regular basis. The main criticism of the historical way the court carved up parenting post-separation was that it maintained the relationship with the primary carer, at the expense of the child’s relationship with the other parent. The idea behind the 2006 reforms could be argued to be bolstering the status quo, in the sense that orders should be structured to maintain the child’s relationship with both parents, unless that is not in the child’s best interests (and generally it is). A parent who was not a primary carer may have an excellent and strong relationship with a child prior to separation that cannot be maintained after separation with infrequent contact. Thus, by attempting to reconfigure the way care is

arranged, the new provisions are aimed at encouraging decisionmakers to find ways to maintain these meaningful relationships between children and both their parents. This reflects the influence that more recent psychological literature seems to have had in leading to these amendments. The essence of this research is that while a certain minimum amount of time might be necessary to maintain a relationship, it is also important that parents be able to engage in a range of activities with their children which allows them to take on an authentic role as parent, rather than as an occasional child minder.195 The question under s 60CC(3)(d) now should be, in trying to maintain meaningful relationships with both parents, what will the effect of separation from [page 596] either of them be on the child, and to factor that into the consideration of how to structure parenting orders. Some areas where this will be particularly significant include cases involving young children (see 9.17) and relocation (see 9.116).

Separation of siblings 9.50 Another matter to be considered is whether a proposed arrangement will be disruptive of an existing relationship and mutual association of the children of a family. As a general proposition, separation of siblings196 is not regarded as desirable. Thus, for many years, even prior to the introduction of the FLA, courts have tried to avoid separating siblings, unless there are strong or special circumstances. Hutley JA summarised the considerations in Barnett v Barnett:197 The cases in which the welfare of the children requires that a family be divided must be very rare. There may be special circumstances, for example, where children

detest each other … or are widely separated in age, or the means of neither parent alone permit him or her taking care of all the children, where such division may be in their interests.198

9.51 There is an abundance of authority to show that this approach has long been followed by the family courts.199 As with most other issues, it is clear that there can be no legal presumption or onuses in dealing with this issue: in practice, it is a principle that the court gives effect to, ‘other things being equal’. The effect of separation of siblings is embodied in the FLA as a matter to be considered in s 60CC(3)(d)(ii): that the court must have regard to ‘the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from … any other child’. 9.52 While the family courts are reluctant to separate siblings, there are examples in the case law where siblings have been separated; for example, Cattanach & Leavens200 and Fitzgerald & Robinson.201 In Cattanach & Leavens, the two children, a boy and his younger sister, had lived with their mother since the parents’ separation. The mother remarried and was proposing to move to the United States to live with her new husband and her children. This would have greatly limited the opportunity for contact between the children and their father, who had also [page 597] since remarried. Although there was a strong bond between the children, they recognised the need to be separated as the boy was strongly attached to his father and the girl to her mother. Similarly, in Fitzgerald & Robinson, Wood J gave effect to the wishes of the two children, a boy and girl of disparate ages. His Honour commented that although it is ‘trite law that the separation of children in a family is to be avoided, it is not an inflexible rule and it is governed by considerations of what the

best interests of the children require’.202 As these cases suggest, the wishes of the children themselves will often be the determinative factor in weighing up whether the siblings should be separated. Another recent example, which attracted some media coverage, is Cassidy v Sibly.203 At the time of trial, the father only sought orders in relation to the parties’ older child, who was living with him in Australia. The mother lived in Canada with the parties’ younger child. The mother had returned to her native Canada with the older child when pregnant with the parties’ second child. She did not return, but the older child was eventually returned as a result of an application by the father under the Hague Convention on the Civil Aspects of Child Abduction 1980: see 8.149ff. The mother refused to return to Australia and the father was not permitted to live in Canada. Dawe J recognised the importance of the relationship between the older child and his young sibling, but concluded that overall the older child’s interests were best advanced by him staying in Australia with his father. 9.53 By the time of trial, the two young children in Cassidy v Sibly (see 9.52) had been separated for over a year. The courts have drawn a distinction between bringing about a separation of siblings and continuing a separation that has already occurred. In Marriage of Hayman,204 the Full Court, per Murray and Lusink JJ, held that: It seems to us that there is a substantial difference between the making of a decision as to whether a family be divided as the result of a hearing, and the making of a decision as to whether a family already divided for some time, should remain divided or be reunited. When the latter is the case, other factors such as the effective change of the environment and presently existing relationships are at least two matters which have to be taken into account.205

9.54 There have also been instances where the court has ordered that siblings who have been separated should be reunited.206 One such case was H & H,207 in which

[page 598] Nicholson CJ awarded custody of all three children to the mother, including the 11-year-old boy who had, some weeks prior to the hearing, moved to the father’s home. His Honour held that the separation of the eldest child from his siblings would detrimentally affect not only his future relationship with his mother, but also his relationship with his siblings. The separation would also be detrimental to his siblings. On this basis, Nicholson CJ ruled that the unit of the three children should be preserved. This was the case, in spite of evidence of conflict between the children. His Honour commented: The fact that siblings fight from time to time does not seem to me to be a proper reason for separating them. In fact, it may well be part of the learning of living skills which is very important to them in later life.208

In reaching this conclusion to make orders keeping the children together, Nicholson CJ placed reliance on published literature highlighting the importance of sibling relationships, especially in the context of the parents’ separation.209 In Re Evelyn210 (see 9.14), a residence dispute arising from a surrogacy arrangement, the trial judge took into account that in the father’s home, the sibling was not a blood relative of Evelyn, in contrast to the siblings in the mother’s home, who were blood relatives: … there are special aspects of relationships between biological siblings which cannot be replicated and … the potential benefits for Evelyn in being allowed to grow up with her biological brother and biological sisters outweigh the potential disadvantages of being separated from her adopted brother. Related to that, I am of the view that it is likely that Evelyn’s sense of loss of opportunity to be raised with her biological siblings would assume greater proportions than the loss she would experience at being separated from her adopted brother.211

While the trial judge’s exercise of discretion was not disturbed on appeal, the Full Court expressed ‘some concerns about the

generality of this conclusion’.212 Ultimately, their Honours did not consider this dubious conclusion materially affected the matter, as in their view the trial judge would have reached the same conclusion as to residence, regardless of this finding.

Parents, third parties and the role of biology in decision-making 9.55 As outlined earlier (see 8.53), third parties can apply for a parenting order under s 65C(ba) (‘a grandparent of the child’) and s 65C(c) (‘any other person [page 599] concerned with the care, welfare or development of the child’). Under s 64C, a parenting order in relation to a child may be made in favour of ‘a parent of the child or some other person’ (emphasis added). Moreover, the matters a court must take into account in determining the best interests of a child under s 60CC(3) are framed in a way to allow consideration of claims by third parties, be they relatives or ‘strangers’, with a number of paragraphs specifically referring to ‘other persons’: s 60CC(3)(b), (d) and (f). 9.56 From time to time, cases arise involving a dispute in relation to a child between a parent or parents on the one hand, and a third party or parties, possibly a family member; for example, an aunt, uncle or a grandparent who has been caring for the child, or some other third party who has been involved in the care of the child. In practice, these cases tend to involve a situation where the child has spent some time away from the natural parents and has become settled and formed attachments within that environment. Difficulties then subsequently arise when a parent seek the return of the child.

9.57 If the paramountcy principle were followed with inexorable logic, then there would really be little weight on the side of a parent competing for custody with a stranger, outside the initial advantage the parent has from his or her own previous contact with the child. Longstanding, secure and stable attachments with capable carers would seem more important to child well-being than the mere fact of biological parentage. 9.58 In practice, however, even before the 2006 amendments there was a distinct reluctance on the part of the courts to defeat the claims of natural parents. In the House of Lords decision in J v C,213 custody of a 10-year-old boy was given to the English foster parents with whom the child had been residing for most of his life, in preference to his Spanish parents, on the grounds that the child was well settled and that a change of custody was not in the child’s best interests. Even so, Lord MacDermott made his view clear that the claims of parents would normally prevail unless that was shown not to be in the child’s best interests: While there is now no rule of law that the rights and wishes of unimpeachable parents must prevail over other considerations, such rights and wishes, recognised as they are by nature and society, can be capable of ministering to the total welfare of the child in a special way, and must therefore preponderate in many cases. The parental rights, however, remain qualified and not absolute for the purposes of the investigation …214

[page 600] Analysis of past cases indicates that the Australian courts have also tended to give priority to the claims of the natural parents. For example, in Powell v Anderson,215 custody of a three-and-a-halfyear-old child was given to the natural parents, even though the child had lived most of his life with foster parents with whom he had been placed following a family bereavement and with whom a strong emotional bond had developed. Hutley JA stated the matter in the following terms:

The court was presented with the competing claims of the parents of a young child who wished to have him returned to the family after having been in the de facto control of a friend of the family and the claim of the friend, based merely upon the emotional ties which had developed. To this there can be only one answer. The claims of the parents cannot be denied. Any other doctrine would mean that where parents are compelled to place children with others because of misfortune or ill health, they are in peril of losing their children altogether to strangers.216

Indeed, in this and some other pre-2006 cases217 there appeared to be reliance on an implicit presumption in favour of the natural parents, even though, strictly speaking, the proper application of the paramountcy principle would demand that the claims of each of the parties be evaluated on merit, with no presumption applying. 9.59 Over time, the language of the court changed and it was recognised that there was no presumption or preference in favour of a natural parent: Rice v Miller.218 In Hodak & Hodak v Newman,219 Lindenmayer J, whose decision was expressly endorsed by the Full Court in Rice v Miller, after referring to earlier contrary authorities went on to say that with the greatest respect to the judges in these cases: … they misstate the position under the Family Law Act. In my opinion, it is incorrect, in a custody dispute as between a natural parent and a non-parent, to state that the role of the natural parent is to be ‘preferred’, or to have recourse to a ‘presumption’ that the welfare of a child will best be served by an order in favour of a natural parent. … the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from

[page 601] which the court commences its decision-making process in the adjudication of custody disputes. Each case should be determined upon an examination of its own merits and of the individuals there involved.220

9.60

What effect did the 2006 reforms have on this position? In

a dispute between a biological (or other legal) parent and a third party, the FLA now says that the benefit to the child of having a meaningful relationship with his or her parents is a ‘primary consideration’. On the one hand, while the FLA has been amended over recent years to strengthen the position of third parties, in particular by specific references to grandparents, at the same time there has been an increasing emphasis on maximising child–parent relationships, culminating in the new primary consideration to that effect: s 60CC(2)(a). Moreover, parties who are not parents do not obtain the advantage of any presumption in favour of ESPR (s 61DA), and the mandatory requirement that the court consider equal parenting time when an order for ESPR is made (s 65DAC). Further, s 60B(2)(b), one of the principles underlying the objects of Pt VII, talks of children having a right to spend time and communicate with their grandparents and other relatives; it does not mention living with them.221 Young J considered the impact of the 2006 reforms in this regard in the case of Davis v Davis,222 a dispute that involved a range of factors. The mother of the child, C, was Aboriginal; C had been raised since birth by her paternal grandmother; and the mother wished to relocate the child away from where the father and the paternal grandmother lived. Young J raised squarely the question of the impact of the new primary consideration and other changes made in 2006 where a third party is involved. His Honour considered a number of unreported decisions since the 2006 reforms — including one by the Full Court post-2006, but not subject to the new provisions223 — and stated that, while the Full Court had not resolved the matter definitively, based on judicial statements to that point, and his own interpretation of the provisions, the law had not changed with the amendments. There is no presumption in favour of biological parents, though in many situations the case of biological parent(s) will be stronger.224 This must, of course, be the correct legal position. A legal presumption determines the onus of proof and requires that a

certain finding be made if certain facts are established. At its highest, the primary consideration relating to parent–child [page 602] relationships requires only that appropriate weight be given to the benefit to the child of maintaining the relationship; for this reason, other considerations may outweigh this primary consideration (see further, 9.26). Thus, there clearly is no legal presumption in favour of biological parents and the court should not operate on the basis that there is. 9.61 As Young J highlights, however, even if the court eschews any presumptive approach in favour of biological parents as primary carers, this is not to deny that, in a practical sense, parents will continue to have a considerable advantage, particularly where they have maintained a relationship with the child. Young J referred in particular to the 2001 unreported decision of D v F,225 where it was said: There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child’s welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.226

In discussing this issue, Young J also referred to comments made by Moore J in Potts v Bimms.227 Moore J noted that certain of the 2006 provisions, including the presumption of ESPR and the mandatory process that follows the making of such an order, do not apply to third parties. Note that in Mulvany v Lane228 (see 9.26) it was accepted by the Full Court that a federal magistrate had erred in treating a non-parent as a parent under the legislation

(though in this case it was the additional considerations that were inaccurately applied). Moore J, in Potts v Bimms, went on to make the point that a number of additional considerations permit the recognition of the importance of relationships with third parties and, in appropriate cases, this can be considered and afforded the appropriate weight.229 Her Honour’s statement of the legal principles relevant to disputes involving non-parents has since been affirmed by the Full Court in Aldridge v Keaton.230 [page 603] In rejecting a contrary interpretation of the provisions, the Full Court in Yamada & Cain231 pointed out that: … [t]he broad inquiry as to the best interests contemplated by s 60CC (in the context of the other provisions of Part VII) recognises that it is not parenthood which is crucial to the best interests of the child, but parenting — and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders. (original emphasis)232

More recently, there has been some discussion concerning the correct process for considering the evidence relating to non-parent carers. The better view seems to be that, to the extent that a matter concerning a non-parent carer is relevant to the determination of the child’s best interests but not able to be considered under other paragraphs in s 60CC(3), s 60CC(3)(m) should be relied upon: ‘any other fact or circumstance that the court thinks is relevant’.233 So, while the legislative provisions have changed, it remains a matter of what is best for the child in question. There is no presumption in favour of placing children with their parents, but the fact of parenthood is a very important consideration. Thus, it is usually where parents do not have a relationship with the child, or present some grave risk, or are otherwise considered ‘unsuitable’ to be parents, that they are likely to lose the care of their children to a third party. A post-2006 example can be seen in Carlson v

Bowden.234 Here, Murphy J placed the four-year-old boy, L, in the care of his paternal grandmother and her partner in circumstances where both parents had a history of drug dependency and criminal convictions. The mother was living with a man with a significant criminal history as well as past drug dependency, and adverse findings were made about his behaviour. The mother and her partner had another young child. The father acknowledged he was not in a position to parent L; however, the mother sought that L live equally with her and the paternal grandparents. Murphy J noted that, in terms of time spent with the child, the mother was what one might call his primary carer and the expert evidence was to the effect that L’s primary bond was with his mother. However, it is clear from reading his Honour’s decision that the evidence satisfied him that the young child needed stability and would receive better parenting in the care of the grandparents, with whom he also had a strong relationship. He described the capacity of the mother and her partner to parent as ‘significantly deficient’.235 [page 604] 9.62 The advantage a natural parent has in parenting applications extends to when the parent is seeking some form of contact with their child: see further at 9.55ff. Re Lynette236 provides an example, however, of the type of case where a biological parent will not be permitted to see their child. The mother of a 12-year-old girl had died and the girl was in the care of a third party, Ms L (the mother’s carer prior to her death and the person to whom the mother had entrusted the child). By the time of trial, the child had been with Ms L for about three years and she had not seen her father since she was four. The trial judge had no hesitation in refusing contact and noted the father had denied paternity, alleged sexual abuse of the child, sought orders for her to have a vaginal examination, and sought to have the

child cross-examined; it was found the father could in no way advance the child’s welfare. The child wanted no contact with her father. The trial judge’s decision was upheld on appeal and confirmed that the biological status of the father created no presumptions in favour of contact.237 In contrast, consider Re Patrick,238 which provides a striking example of the significance of biology in making parenting orders and the tendency of the court to favour contact to biological parents, even prior to the 2006 amendments. In this case, a male (F) agreed to provide semen to a same-sex female couple (M and C) for insemination purposes. After conception, but before the child’s birth, a bitter disagreement developed over F’s role in the life of the child, and the female couple went into hiding. A month after the birth of the child, Patrick, F initiated proceedings for joint long-term parental responsibility and contact on a gradually increasing basis. Despite unsuccessful counselling of the parties, it was agreed that F could have contact with Patrick, which began when Patrick was about two months old. Six months later, final consent orders were made under which it was agreed that M and C would have short- and long-term parental responsibility for Patrick, and F would have two hours’ contact with Patrick every third weekend, with contact to increase over time. However, the parties’ relationship deteriorated with serious disputes over issues such as whether F should refer to himself as ‘Dad’ to Patrick, and nearly a year after the final consent orders were made, M and C stopped all contact and sought the discharge of the orders. F opposed the application, seeking fortnightly contact increasing over an extended period to something akin to a ‘normal’ contact regime. In finding in favour of F, Guest J explored the complex issues surrounding such decisions. He noted the need not to discriminate against different family forms and considered the ‘family’ in this case to be the same-sex couple and Patrick. Guest J said his decision to permit contact was based not on biology, but on F’s

‘relationship with Patrick that is the central focus of his role and which should be [page 605] permitted to grow parallel with the happiness and well-being of the “family”’.239 While Guest J maintained this decision was not dominated by biology, one wonders what the outcome would have been had the man in question simply been a friend of the two women who they had agreed would assist them with raising the boy. This case attracted considerable attention (not least because of the tragic aftermath, in which the biological mother killed herself and Patrick). Kelly has considered the decision in detail and warns of the dangers of imposing gendered notions of family — where a father figure is required — on homosexual households. In particular, she challenges the role of biology in dominating decisions as to parenting, when the same biological imperatives do not reflect the reality of children in same-sex households.240 In considering the role biology may have played in Re Patrick (and indeed the way courts react to same-sex parents), one might contrast the decision in Love & Lundy.241 In this case, a child with two legal mothers (pursuant to s 60H) was not ordered to have contact with the non-biological mother. The child was only eight months old at separation. It is difficult to imagine the following being said of a biological parent and their child in similar circumstances: X has two mothers but unfortunately she no longer has any relationship with one of them. She does not have a meaningful relationship with Ms Love because her relationship has been severed. I have to consider whether or not it is in X’s best interests for her to have the opportunity to reconnect with Ms Love. In considering this it is necessary to consider Ms Lundy’s attitude towards X having a relationship with Ms Love. The attitude of Ms Lundy’s family is also relevant here. Unfortunately, I have reached the conclusion that making specific orders forcing Ms Lundy to make X available to spend regular time with Ms Love would not be in

X’s best interests. In order for it to work and for it to be a positive experience for X, particularly given that she does not have a current attachment to X, Ms Lundy would need to support and encourage X.242

The general conduct of the parties 9.63 The notion of ‘conduct’ is open to wide interpretation covering not only matrimonial conduct (see 9.64), but also many other aspects of parental behaviour such as promiscuity, drunkenness or drug use, and unconventional lifestyles [page 606] (see 9.67–9.68). Essentially, the approach of the courts, applying the paramountcy principle, is to hold that the conduct of the parties is only relevant in so far as it impacts on the best interests of the child. Consistent with the rejection of presumptions in other areas, there can be no presumption against a party on account of their conduct. Like all other matters, a party’s conduct is subordinated to the paramount interest principle.243 A recent application of this approach is seen in this statement by Cronin J in relation to a video recording made by the mother of her engagement in sexual activity: ‘None of the evidence supported the husband’s assertion that there was any link between the wife’s sexual proclivities and the children’.244 The correctness of this approach is evident from a reading of s 60CC, which sets out the relevant matters that the court is required to take into account in determining the best interests of the child: conduct will only be relevant where it can be brought within one of the specific matters for consideration, such as s 60CC(3)(f): ‘the capacity of [the parents] … to provide for the needs of the child, including emotional and intellectual needs’; and s 60CC(3)(i): ‘the attitude to the child, and to the

responsibilities of parenthood, demonstrated by each of the child’s parents’. The checklist does, however, identify some specific types of parental conduct that may be relevant. The reason these are identified is that they all have direct relevance to the best interests of children. One such category of conduct is family violence (s 60CC(3)(j)): see 9.28ff and Chapter 3. Finally, there is the catch-all provision in s 60CC(3)(m): ‘any other fact or circumstance that the court thinks is relevant’; but this must clearly be read in a manner consistent with the paramountcy principle. That is, the particular conduct raised must have some impact on the child’s welfare to be a relevant consideration.

Matrimonial conduct of the parties 9.64 At one time, when the matrimonial offence doctrine prevailed, the outcome not only of divorce (principal relief) but also so-called ‘ancillary relief’ was governed by principles of fault. Thus, a matrimonially ‘guilty’ spouse would generally be regarded as disentitled to custody or guardianship of the children. Even prior to the introduction of the FLA (which heralded, among other things, the abolition of the matrimonial offence doctrine), Hutley JA commented in Barnett v Barnett245 that the issue is not a question of doing justice between the parents based on an assessment of their conduct, ‘[i]t is their conduct, insofar as it bears on welfare, which is important’. [page 607] 9.65 This is now clearly the approach to be taken under the FLA. The following statement from the joint judgment of Evatt CJ and

Asche SJ in the 1983 case of Marriage of Smythe246 continues to represent the modern view: Turning now to the question of matrimonial conduct, there is again numerous authority for the proposition that matrimonial fault or conduct is relevant in relation to custody or access only if it has some bearing on the fitness of the person as a parent and, as a consequence, on the welfare of the children. … The court will not embark upon an investigation of whether a party committed adultery, was cruel or deserted, or constructively deserted the other party when such an inquiry could not lead to a finding which would of itself disqualify that party as a custodial parent. If there are facts relating to the causes of separation or to marital misconduct which have a real bearing on the fitness of a parent or otherwise affect the child’s welfare, these will be considered and given appropriate weight. But there are no onuses or presumptions in relation to matrimonial fault nor is it of itself a matter which needs to be inquired into unless relevant to the children’s welfare.247

This approach is entirely in keeping with the philosophy of the FLA that an inquiry into the cause of the marriage breakdown is not proper. Thus, only where there is a need for conduct to be considered on account of the best interests of the child will the court be willing to do so. It follows that evidence of a party’s adultery or their cohabitation with another person is not relevant per se and will only be considered where that conduct has a bearing on the welfare of the child. This is not to say that such matters will not be included in affadavit evidence, but no weight should be placed on such matters where they have no impact on the child’s welfare.

Kidnapping 9.66 In Marriage of Smythe248 (see 9.65) the Full Court made it clear that the principle stated by the court in relation to conduct applies not only to issues of fault such as adultery, cruelty or desertion, but also to other aspects of a party’s behaviour that may have a bearing on the justice of the situation. In this context, reference was made to the case of Marriage of Schenck,249 dealing with the situation where a parent had kidnapped a child. Although the courts do not condone the kidnapping of a child

by one of his or her parents, they have nevertheless emphasised that there should be no departure from the paramountcy principle in such cases. In Marriage of Schenck, the wife had argued that a kidnapping parent — in this case, the husband — should only be [page 608] awarded custody if the other parent is unfit. However, that argument was rejected by the Full Court. Thus, the fact that a parent has kidnapped a child will not, of itself, disentitle that parent from having the child living with them, in spite of the prima facie unlawful nature of such behaviour.250 Nonetheless, the courts have made it clear that a parent who deliberately removes a child from contact with the other parent, in circumstances where the child’s welfare does not render such action necessary or reasonable,251 will generally be seen as having acted contrary to the welfare of the child by doing so: Marriage of Schenck; see also Marriage of Kress,252 where the court noted that the taking of the child by the father and the subsequent concealment of the child manifested a lack of feeling that must weigh in the balance against the father, so far as being the child’s primary carer. In a practical sense, however, a parent could secure an advantage by such actions, particularly where they have the child in their care for some time, during which time the child has no contact with the other parent. Thus, a parent could possibly benefit from their own wrongdoing through kidnapping the child. As Golstein J explained in Marriage of Kress: … whatever the wrongs of the taking of a child from a parent by stealth and the keeping of such child’s whereabouts secret, it is not the court’s function to punish the taking parent when deciding the issue of the custody of the child. The welfare of the child is the paramount consideration of the court.253

Unconventional lifestyle

9.67 Inevitably, a case may arise where a parent’s lifestyle conflicts with prevailing community norms. This situation may cause one parent to argue that the child would be better off living in a more conventional household. Fogarty J, in Marriage of Horman,254 discussed the question as follows: … this matter has to be determined upon the basis of the welfare of the child as the paramount consideration. The test of the welfare of the child has to be determined having regard to contemporary social standards. In saying that I am not suggesting that applicants for custody must fit themselves within some accepted social norm or groove. Our community enjoys the benefits of widely differing social styles and attitudes and it would be unacceptable if a parent’s custodial position was endangered simply because that person’s mode or style

[page 609] of living or attitude of life differed even radically from what might be regarded as the community norm. However, where the court is convinced that the proposed mode of behaviour of a parent seriously offends even the most elastic views of conventional morality and where it considers that the mode of living would or may seriously jeopardise the future welfare of the child, the court has a duty to act upon that view.255

9.68 It is clear that it is not the unconventional views of a parent as such that will militate against a parenting order being made in favour of a parent. Rather, it is the behaviour to which parents’ beliefs may give rise and its effect on the child that will influence the court deciding the issue. Thus, in Horman’s case, it was not the father’s beliefs, but the fact that he was proposing to live in a remote location without any regular support, and not to send the child to school, as well as the likelihood that he would indulge in drugs and a free sexual life, which led Fogarty J not to award custody to the husband, because it was not in the best interests of the child.256 A more recent case, W & G (No 2),257 considered whether a father, who had a history of criminal activity and drug use, and had no contact with the child since her birth, should be allowed to spend time with his then 13-year-old daughter. This case raised

a number of other issues as to the father’s lifestyle (including related to the father’s homosexuality: see 9.69ff), but Carmody J expressly pointed out that these were not to be held against the father as such and detailed consideration was given to what would best promote the child’s interests. In the end, an initial supervised introductory meeting was ordered, with further contact to be at the instigation of the daughter.

Homosexuality 9.69 Other aspects of a parent’s life are also being looked on more objectively than formerly was the case. Thus, a parent’s homosexuality should not, in theory, disadvantage them when seeking an order that a child live with them.258 As long ago as 1979, Evatt CJ stated in Schmidt & Schmidt259 that what the court would look to was the parenting ability of a parent, considering the extent to which that parenting ability might have been affected and whether the homosexual parent’s relationship might be posing a risk to the child. However, it might be argued this [page 610] was not a neutral stance and paid some special attention to a person’s sexuality, but only where they were homosexual and not heterosexual. L & L260 was for a time a leading authority in this area. In that case, it was suggested there were particularly relevant considerations in such cases, including whether children raised by their homosexual parents may themselves become homosexual or whether this was even likely; whether or not children should be made aware of their parents’ sexual preferences; and whether the child of a homosexual parent could be stigmatised by peer groups, particularly if the parent was known in the community to be a homosexual.

For an illustration of the application of these principles, see the decision of Hannon J in Marriage of Doyle,261 in which custody of the two boys of the marriage aged nine and 11 years was awarded to the homosexual father.262 Hannon J said that the list of considerations outlined in L & L remained a ‘handy checklist’.263 Heterosexual parents did not, of course, have the same questions routinely asked about the effects of their sexuality on their children and the decisions outlined above belie early statements espousing the equal treatment of homosexual parents. This is supported by a number of reported cases where applications for custody or access by a homosexual parent were successful, but the order was made subject to undertakings by that parent; for example, Marriage of Spry,264 where the mother was granted access subject to the condition that she and her lover undertake that there would be no display of sexual affection between them in the presence of the children. Not surprisingly, the imposition of such undertakings was the subject of criticism on the grounds that they are unenforceable and discriminatory.265 Millbank noted that despite the rhetoric of impartiality, hurdles were set for same-sex parents that did not feature for heterosexual parents: The major issue in this regard is not the law itself, which is value neutral, but its administration through judges (and lawyers whose attitudes may well be determinative in negotiations). The breadth of the ‘best interests of the child’ principle requires the exercise of considerable discretion. Moreover the role of court counsellors, psychiatrists and psychologists is crucial in swaying outcomes. The recent case of In the Marriage of A and J (1995) 19 Fam LR 260; FLC 92-619 is a disturbing illustration of this issue. In that case the three year old child had lived equal amounts of time with the father and with the mother and her female partner for over a year before trial. The court expressly stated that a lesbian relationship was not a negative factor and also that the mother’s new

[page 611] partner had a good relationship with the child. It found that the parents were equally balanced in terms of their abilities to care for the child; however the father

was moving interstate. (Often this is referred to as disturbing the status quo and it is a negative factor.) However, a counsellor gave evidence that it was of overriding importance that the child have a ‘balancing’ male influence to counter the effects of the mother’s lesbian relationship. The trial judge accepted that evidence and granted custody to the husband on those grounds. The Full Court upheld this decision.266

In more recent times, however, there is more community acceptance of homosexuality, and with this has come a change in judicial approach. In W v G (No 2)267 (see 9.68) Carmody J, after referring to L & L and Marriage of Doyle, said: The community is filled with a diversity of lifestyles and values. It is appropriate to acknowledge and respect even the most unconventional of them but it is not a judge’s function to promote any particular set of standards or moral values.268

While Carmody J did not expressly disapprove of L & L, nor was any ‘handy checklist’ applied or any unreasonable condition imposed. The case involved a father seeking contact after many years with his 13-year-old daughter; his homosexuality was just one of the matters raised by the mother in seeking to oppose any contact. In more recent decisions, while homosexuality is still sometimes raised, it is not usually the subject of any particular comment, evidencing greater appreciation that a person’s sexuality itself is not a relevant factor in determining what is best for a child.269 9.70 Another issue that has come up in some cases involving gay fathers (though of course this may arise in other situations)270 is the relevance of a parent being HIV positive. This was also an issue in W & G (No 2): see 9.68 and 9.69. The father, who was also a drug user, had a chronic but manageable infection, and it was agreed by medical experts that normal social contact would not expose [page 612]

others to transmission. The mother, who had many concerns about the father and his lifestyle, was fearful of the child being affected by the father’s medical condition. Carmody J found that the father’s sexuality and ‘HIV status may also cause social pressure and possible shunning among peers in a conservative school or church environment and may affect her social interactions’.271 However, his Honour went on to say that the father posed no health risk to his daughter due to his medical condition and that the child’s ‘acknowledged right, established need and probable wish to know (and meet) her father’ was not overridden by these other factors.272 Being HIV positive is of course no different to a parent suffering from any other medical condition, in the sense that the decisionmaker must consider whether this factor will adversely impact on the child’s welfare. However, historically there has been misunderstanding in the community as to how easily this infection is transmitted and there may also be some sectors of the community opposed to homosexuality who are not accepting of people suffering from this condition. For either reason, this can lead to the argument being put, as in W v G (No 2), that the child will (unreasonably) suffer from peer disapproval, or isolation, as a result of contact with an HIV-positive parent. The Family Court cannot ignore this possibility when it is raised, as was seen in Carmody J’s comments. In the earlier case of Marriage of B & C,273 Smithers J was presented with clear evidence that the child in question was at no real risk of contracting AIDS from his father, but was also satisfied that the mother, friends and relatives did not accept the medical evidence and that this would have an impact on the child. Given the information available in 1989, he did not find this view unreasonable, however wrong it might in fact be. The father argued that the Family Court should not promote public ignorance and misunderstanding of AIDS. However, his Honour was clear that it was not the role of the court to educate the public, but to decide what was best for the particular child. The father’s application for contact was ultimately dismissed, but

it is clear from the decision of Smithers J that there was a combination of factors mitigating against contact in this case. More recently, as community understanding has improved, there has been little discussion of this particular issue in cases. However, the principles remain important in relation to claims made by parents that living in, or exposure to, certain households will cause a child to suffer bullying or the like, particularly where accepting that premise might amount to discriminatory treatment of the other parent. [page 613]

Religion 9.71 There have been instances where the religion of one or both of the parties has been a relevant consideration in contested child proceedings. As will be explained in more detail below, the contemporary approach of the court is not to involve itself in issues of religion unless there is evidence that it is necessary in the interests of the child. The issue of religion may directly or indirectly be raised in the consideration of relevant matters under s 60CC for the purposes of determining what is in the child’s best interests. It is arguable that both of the primary considerations could raise issues of religion. A meaningful relationship with a parent may include sharing or understanding that parent’s religion and so, to benefit from such a relationship, this may need to be considered.274 Conversely, it might be argued that a child is exposed to some physical or psychological harm from involvement in, or exposure to, the practices of a particular religion. This is most likely to be argued in the case of what might be considered by some as ‘sects’,275 though the issue of blood transfusions for children in the Jehovah’s Witness faith has also arisen.

Aside from it possibly being raised under s 60CC(3)(m) (‘any other fact or circumstances that the court thinks is relevant’), religion can also be raised under other, more specific, considerations. For example, it may be relevant to the nature of the relationship of the child with a parent (s 60CC(3)(b)), or the capacity of a parent to provide for the needs of the child, including the emotional and intellectual needs (s 60CC(3)(f)), or the child’s maturity, sex, lifestyle, background, culture and traditions (s 60CC(3)(g)). 9.72 Under normal circumstances, the question of religious education will be a matter for the parents to determine in the exercise of their parental responsibility. It is clearly a major longterm issue (see the definition in s 4(1)) and so, where there is an order for shared parental responsibility in this regard, the parties must consult and the decision must be taken jointly (s 65DAC(2) and (3)): see 8.26.276 Inevitably, there will be cases arising from time to time where the religion of one or both of the parties is raised in contested proceedings as a material matter for the court to take into account in determining what is in the child’s best interests. 9.73 Attempts have been made to argue that the courts should not become involved in matters of religion as between the parents in contested child proceedings [page 614] by virtue of s 116 of the Constitution, which prohibits the Commonwealth from ‘prohibiting the free exercise of any religion’. In Marriage of Paisio (No 2),277 the Full Court of the Family Court saw the relevance of s 116 as meaning that: … an Australian Court cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a ‘religious’ upbringing is to be preferred to a ‘non-religious’ one.

Subsequent cases have made it clear that a finding by a court, after weighing all relevant factors, that it is detrimental to the welfare of the children for them to be brought up adhering to the practices of a particular faith does not constitute a breach of s 116 of the Constitution.278 Note also Marriage of Morrison,279 where it was held that an order placing restrictions on the religious activities the husband could pursue with his children (requiring the prior approval of the wife) did not infringe the husband’s rights under s 116. 9.74 While some of the earlier cases had tended to adopt a presumptive approach against particular religious persuasions,280 the approach of the Family Court has, for many years, been to attach significance to religion only in so far as the beliefs and practices impact on the child’s best interests.281 The approach of the court to the issue of religious upbringing was usefully explained in Marriage of N282 in the joint judgment of Evatt CJ and Fogarty J: Only in unusual circumstance will the court be prepared to consider whether the nature and degree of religious observance of one parent and the proposed religious upbringing of that parent could have such an effect on the welfare of the child that it should assume significance in a custody decision. There are rare cases where a parent’s religious upbringing is seen as inimical to the welfare of the child.283

9.75 When are the practices of a religion inimical to the interests of children? There have been a number of cases involving Jehovah’s Witnesses where the court has agreed to give parental responsibility for medical decisions to the parent who does not follow that faith, to permit blood transfusions for the child.284 [page 615] In Bell & Bell,285 the father sought an order restraining the parents from exposing the children to any religion other than Catholicism or the Anglican faith. Though the mother identified as Anglican, it

was her engagement with the Jehovah’s Witness faith that concerned the father; in his words, he was ‘vehemently’ opposed to it. The children were regularly attending an Anglican Church, but had exposure to the Jehovah’s Witness faith through their mother; however, the mother’s evidence was that she did not intend having them baptised in that faith, nor did she subscribe to all the beliefs of that faith, including in relation to blood transfusions. Rather, she said the faith, and the church she attended, provided comfort and solace to her, in particular following the parties’ separation. The federal magistrate refused to make the order sought by the father, concluding the ‘alleged danger to the children’s religious upbringing would appear to be somewhat exaggerated, if indeed it exists at all. It certainly does not warrant a restraint on the Mother’s freedom’.286 The practices of the Exclusive Brethren have also come under consideration. In Elspeth v Peter,287 there was particular consideration of their prohibition on social interactions with nonmembers of the faith. In this case, the mother and children had remained in the Exclusive Brethren while the father had left and joined the Open Brethren (thus precipitating their divorce). The father wanted the children to leave the Exclusive Brethren and the mother limited the children’s contact with their father in accordance with the precepts of her faith. In the first hearing in this matter, in 2006, the children were ultimately left with the mother and the father was permitted limited contact. This was something of a sad saga, however. The mother repeatedly breached the orders so that, by the time the matter came back on for hearing in 2009,288 the father had not seen the youngest two children for nearly two years. The mother had by then been diagnosed with terminal cancer. At trial she sought the discharge of the orders permitting contact and the father sought that the children live with him. Brown J concluded the only appropriate solution for these children, who were deeply immersed in a religion that prohibited them from having contact with non-

members, was for the mother to be given sole parental responsibility and for the children to live exclusively with her. 9.76 This case highlights the role of the child’s wishes (s 60CC(3)(a)): see 9.40–9.45. Article 14 of the United Nations Convention on the Rights of the Child 1989 deals with the right of the child to freedom of thought, conscience and religion. It may be that the children’s wishes and belief in their faith are so strong that orders respecting that must be made, as in Elspeth v Peter (see 9.75), even though it might be argued that their beliefs are not objectively based. Conversely, in Firth & Firth (see 9.73), another case involving the Exclusive Brethren, a decision was made [page 616] that conflicted with the wishes of two children, aged 10 and 12. The children were accordingly moved from the care of their paternal grandparents (who were members of the Brethren) to their mother (who had left that religion), and injunctions were made restraining the children’s contact with members, including the grandparents and father. 9.77 On occasions where a parents’ beliefs, lifestyle and culture are under scrutiny, one parent may argue that a child will be stigmatised if a particular parenting order is made (or not made): see 9.70. This was argued in a religious context in the case of Marriage of H,289 though it had the opposite effect from that desired. The father, a Catholic Maronite, particularly wanted the child to be educated at a school adhering to that religion. He led evidence to the effect that education in the father’s faith was a significant matter in his community and that failure to do this could lead to peer conflict. Ryan FM solved this problem by ordering a state school education (as proposed by the Muslim mother) on the basis that the child would be better protected in

this environment from any negative consequences of the application of such patriarchal practices.

Children of Aboriginal or Torres Strait Islander descent 9.78 Article 30 of the United Nations Convention on the Rights of the Child 1989 provides: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

Prior to 1996 there was no specific reference in the best interests checklist to the particular needs of Indigenous children. In early cases, the Family Court rejected any ‘placement principle’ in cases involving Indigenous children and insisted that, in accordance with the legislative direction that the child’s welfare is paramount, each case had to be evaluated on its own facts. Thus, there was no presumption that placement with a parent of one particular race was to be preferred over placement with the other.290 For example, in the 1984 case of Goudge & Goudge,291 the trial judge awarded custody of three part-Aboriginal children to the father who was of European descent, in spite of his negative attitude to the children’s Aboriginality. This decision was upheld by a majority of the Full Court, which stressed that while lifestyle and identity were relevant considerations, there could be no presumption in favour of one parent on the grounds of differing racial [page 617] origins. Evatt CJ, however, dissented on the grounds that greater weight should have been given to the implications of the loss of

contact by the children with their Aboriginal background, particularly in view of the fact that access would be likely to be infrequent, as well as the father’s negative, if not hostile, attitude to the children’s Aboriginality. It should be noted that the Australian Law Reform Commission, in its 1986 report Recognition of Aboriginal Customary Laws,292 rejected a legislative preference for a parent of one race or cultural background as against another for the purposes of parenting disputes, but recommended that principle be given effect to for the purposes of adoption law and child welfare placements. Even if there are no presumptions operating in this area, cases like Goudge & Goudge raised issues as to the level of understanding of decision-makers about the particular impacts on Indigenous children of being removed from their culture. There were, however, some decisions before 1996 that showed an emerging sensitivity to the issues raised where Indigenous children were the subject of proceedings and one of the parties was not Indigenous. The Full Court decision in the 1996 case of B & R293 represented something of a watershed in the court’s approach in this regard: see also Marriage of McL.294 B & R concerned a parenting dispute about a two-year-old girl; the parties were the child’s non-Aboriginal father and her Aboriginal mother. At the time of the hearing, the child had been living with the father for approximately 15 months and the mother had had little contact during that period. The mother’s application for custody was supported by the separate representative for the child. During the course of the trial, the separate representative sought to adduce evidence of the experiences of a number of Aboriginal children raised in non-Aboriginal environments and, in particular, the difficulties that were encountered by those children and the damage to identity and self-esteem that they suffered. The trial judge had not regarded that evidence as relevant, had sought to restrict its admission into evidence, and did not refer to it at all in the reasons for judgment. On appeal, it was argued that, among

other things, the trial judge had failed to give sufficient weight to the importance of the child’s Aboriginality. The Full Court held that evidence of the type sought to be called by the separate representative, concerning the difficulties faced by Aboriginal children brought up in non-Aboriginal environments, raised a relevant and potentially important issue in the determination of the best interests of the child. It should have been treated as such by the trial judge and weighed in the balance against all the other relevant factors to determine how the best interests of the child would be served. Their Honours rejected the objection raised by the trial judge that the admission of such evidence would amount to some form of discriminatory or preferential [page 618] treatment. It was held that such an approach is entirely inconsistent with the doctrine of equality before the law: By failing to recognise these uniquely Aboriginal experiences, its effect is to administer something less than equal justice to Aboriginal people. By pretending that these experiences are not what they are — tragic, relevant and unique — this approach treats Aboriginal people as if they were not who they are. It recognises less than their complete identity and humanity. That is an effect which this court finds objectionable and the approach is one which we reject.295

9.79 The Full Court also referred to Art 30 of the United Nations Convention on the Rights of the Child (see 9.78), emphasising the importance to be attached to these rights. Their Honours suggested, however, that to regard the relevance of Aboriginality as confined only to its connection with such general rights is to adopt too narrow a view of the significance of the child’s Aboriginality as advanced in this case: The evidence which was sought to be adduced in this case focused on the effects on Aboriginal children of being raised in a white environment, in which the lack of reinforcement of their identity contributed to severe confusions of that identity

and profound experiences of alienation. Though obviously connected to Aboriginal culture and heritage, it appears to us that the point which this evidence seeks to make is either separate and distinct from the more general cultural issue, or at least a much deeper illustration of it.296

9.80 The significance of B & R lies in its sensitivity to important cultural issues, and its clear direction that evidence regarding the effects on Aboriginal children of being removed from their Aboriginal parents is relevant and ought to be carefully evaluated by the trial judge in reaching a decision as to children’s best interests. There is nothing in B & R to suggest that there should be a change in approach such that a presumption applies in favour of Aboriginal placement; indeed, this would be contrary to other authority of both the Full Court and the High Court rejecting reliance on presumptions in contested child cases. Each case must still be determined on its own facts. 9.81 Two years after the decision in B & R, the Human Rights and Equal Opportunity Commission handed down the (now wellknown) report, Bringing Them Home.297 As a result of this, and other reports,298 the government amended [page 619] Pt VII to provide more guidance on the relevance of cultural considerations. Section 60B(2)(e) identifies the child’s right to enjoy their culture, including with those that share their culture, as a principle underlying the objects of Pt VII. The ‘additional’ considerations when determining a child’s best interests include a general provision concerning a child’s culture (s 60CC(3)(g)) and, more specifically, recognition of the right of Indigenous children to enjoy their culture and require consideration of the likely impact of any order on that right (s 60CC(3)(h)). Section 60CC(6) fleshes out what it means for a child to ‘enjoy’ their Indigenous culture. Section 61F directs the court — when applying Pt VII to Indigenous children or identifying persons who have, or might,

exercise parental responsibility in respect of such a child — to have regard to the particular kinship obligations and child-rearing practices of the child’s culture. In Donnell v Dovey,299 it was held that, while couched in mandatory terms, s 61F does not necessarily prohibit a court from proceeding to make a decision in the absence of such evidence. These provisions give greater statutory recognition to the rights of children referred to in Art 30 of the United Nations Convention on the Rights of the Child. However, the rights referred to in these provisions remain subject to the best interests of the child. For an example where the Full Court found that a trial judge erroneously elevated immersion of a child in a particular Aboriginal cultural setting ahead of other considerations important to the welfare of the child, see M & L (Aboriginal Culture).300 9.82 Davis v Davis301 is an example of a case decided under the current provisions. The mother in this case was Aboriginal; the father was not. The mother, having to return to her community in central Australia for ‘women’s business’, had left the child from a very young age with the maternal grandmother. When the child was about seven months old, the grandmother began proceedings to obtain an order that the child live with her. The father supported this application, or in the alternative, sought that the child live with him. The mother opposed the application, seeking an order that the child live with her and be permitted to move with her to the town where she grew up (and where she and the father had met). The grandmother had been making an effort to involve the child in local Indigenous culture. Young J made orders in favour of the mother and emphasised the need to foster the child developing a strong connection with her mother’s culture. Young J noted that the objects of Pt VII (s 60B(1)) and the primary consideration in s 60CC(1)(a) stress the importance to children of a ‘meaningful’ relationship [page 620]

with both parents. Applying Mazorski v Albright302 (see 9.27), His Honour noted that meaningful relationships are those that are important and significant to the child, and this meant the court needed to evaluate which past, present and future relationships would fall into that category for this particular child. In Young J’s opinion, the child’s best interests demanded that she and the mother develop and maintain a meaningful relationship, ‘and in the foreseeable and long term future that relationship will be more constructive, meaningful and appropriate to her than a relationship with her father alone’.303 On the significance of culture to Indigenous children in proceedings under Pt VII, Young J said: The Act states that in order to promote the best interests of an Aboriginal child and to allow them to fully develop their identity and self-esteem the child must be afforded the opportunity to maintain a connection with their culture, to enjoy their culture with others who share that culture, to develop a positive appreciation of that culture and to explore it to its full extent … [T]he new language creates a far greater imperative for the court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of ‘connection’ with a stronger and more active meaning.304

As to how a ‘connection’ is maintained, his Honour referred with approval to the statement of Moore J in B v F305 that this means more than just providing the child with ‘information and knowledge about their heritage’. Rather, it ‘encompasses an active experience of their lifestyle, culture and traditions … [which] can only come from spending time with family members and community’. 9.83 In Hort v Verran,306 the Full Court, having been referred by the appellant Aboriginal mother to the decision in B & R307 (see 9.78), considered whether a trial judge erred in failing to seek anthropological evidence as to the child’s Tiwi Islander identity and heritage. The Full Court noted the comments in B & R advocating the need in such cases for ‘an appropriately qualified expert’ to present such material to the court. In Hort v Verran, the

relevant evidence was provided by the maternal grandmother, a Tiwi Islander elder. The Full Court held this was sufficient in the circumstances and there was no requirement for evidence from an anthropologist: Whilst there may be cases where anthropological evidence is of assistance, we question the extent to which that could realistically be so, when, as occurred

[page 621] in this case, there is available expert opinion from an Elder of a particular Indigenous group or society. It is to be remembered that the cultural heritages of the hundreds of Indigenous tribes in this country vary significantly, and that the culture is preserved and passed on by the Indigenous Elders to whom it is entrusted, via the oral tradition. Thankfully, it is now generally accepted in Australia that Aboriginal peoples can speak for themselves, particularly in relation to their own culture and traditions. The potential for non-Aboriginal Euro-centric impressions or interpretations to usefully inform Courts in relation to Aboriginality must now be limited in ways it was not in earlier times.308

This sentiment was confirmed in Donnell v Dovey:309 see 9.81. Hort v Verran also highlights the need for family report writers to have due regard to cultural issues.310 9.84 Even before the 2006 amendments, it was obvious that decision-makers need to look very closely at the particular Indigenous cultural groups under consideration, and their practices. Thus, questions as to maintenance of cultural connections can arise even when the dispute is between Indigenous parents. In Re CP,311 the four-year-old child in question (C) was the son of Tiwi Islander parents, but had been raised by a Thursday Islander woman (FOB) in Darwin for most of his life. The dispute was between FOB (who wanted C to remain with her) and the mother, who wanted C to be raised on the Tiwi Islands by his extended family (his ‘other mothers’), in Tiwi Islander fashion. It was agreed that the key issue was whether C would retain his Tiwi Islander culture if he remained in the care of FOB. At first instance, FOB was successful. However, in upholding

the mother’s appeal, and remitting the matter for rehearing, the Full Court found that the trial judge had erred by approaching the issues with insufficient sensitivity to the precise differences between Tiwi Islander culture and other Indigenous cultures. 9.85 In February 2012, the Family Law Council provided a report to the Federal Attorney-General on Improving the Family Law System for Aboriginal and Torres Strait Island Clients.312 One term of reference was to advise on the considerations to be taken into account when the FLA is applied to Indigenous clients. The Report considered 55 cases since the 2006 amendments and concluded: … over time the Courts’ consideration of Aboriginal and Torres Strait Islander culture has become more prominent and better informed. Anthropological evidence is commonly utilised. Reflecting a greater awareness of the diversity of Aboriginal and Torres Strait Islander cultures, the cases revealed an increasing emphasis on evidence specific to the child’s particular cultural group … The

[page 622] judgments also suggest a growing judicial appreciation of the importance of the child’s cultural identity needs, encouraging immersion in their Aboriginal or Torres Strait Islander culture where limited engagement with identified activities is insufficient to support their cultural connections. However, some concerns about the Courts’ approach to cultural issues remain. In particular, Council’s survey of cases suggests continuing problems with the way in which matters involving Aboriginal and Torres Strait Islander parties are litigated, and with the approach to cultural issues taken in some family reports … Council’s review … also shows that while some of the amended sections of the Family Law Act, such as section 60CC(3)(h), have received considerable judicial attention, others, such as section 60CC(6), are used infrequently.313

‘Spend time with’ orders Orders not permitting children to spend time with parents

9.86 In some cases, due to the circumstances, one party will argue that the child should not spend any time with the other party (usually a parent). This has raised the question of whether parents have any right to have contact with their children. However, in the 1976 case of Marriage of D’Agostino,314 it was held that contact between a child and parent was not a right of the parent, but a right of the child. Nonetheless, some early cases appeared to suggest the operation of a de facto presumption in favour of access to the non-custodial parent: Cooper v Cooper.315 9.87 In the case of Marriage of Cotton,316 Nygh J rejected the language of ‘rights’ used in Cooper v Cooper. While accepting that it is generally desirable for a child to maintain a meaningful relationship with both parents, he cautioned against elevating any of these generally accepted perceptions into presumptions that can only be displaced by evidence to the contrary. His Honour emphasised that in each case, the court must make an independent investigation into what the welfare of the child requires, and contact should only be ordered where the court is satisfied that there is a chance of a meaningful relationship that is beneficial to the child: It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this court making orders for such contact.317

[page 623] 9.88 In Brown & Pederson,318 the Full Court of the Family Court examined the nature of contact and its relationship with the welfare principle. Their Honours expressly approved the decision of Nygh J in Marriage of Cotton, holding that contact is not a right of a parent of which he or she should only be deprived for good and compelling reasons. It is a question in each case of determining whether the paramount interest of the child indicates

one way or another whether access should be had or continue. The importance of the child maintaining ties with each natural parent is a factor to be taken into account, but was not a presumption or rule to be rebutted.319 In practice, as we have seen, the courts have long proceeded on the assumption that it is generally in the interests of children to spend time with their parents. As a result, orders suspending or denying altogether contact between a parent and child are not routinely made. Thus, while under the FLA there has never been a presumption in favour of a child spending time with a parent, the reality is that even before 2006 it has long been very difficult to persuade a court that a child should not spend time with a parent. 9.89 The current version of Pt VII supports this approach. Section 60B(2)(b) provides that, except where it 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.

This is conceptually linked to the right recognised in s 60B(2)(a) that a child has to know and be cared for by both parents. It supports the conclusion that the matter should be looked at in terms of the rights of the child, not those of the parents. Article 9.3 of the United Nations Convention on the Rights of the Child 1989 (on which s 60B(2)(b) was based) provides that children have a right to regular contact with both parents; it does not require them to have that contact, but rather argues against them being prevented from such contact where the contact would bring benefit to the child. Fogarty J in Marriage of N & S,320 having referred to this article, concluded: Thus the question to be determined in deciding whether this particular right should be exercised is whether it is in the child’s best interests to have contact with both parents. There can be no presumption either that it is or that it is not. The inclusion of the expression ‘except if it is contrary to the child’s best interests’ only clarifies the meaning of the right.321

[page 624] 9.90 Although the legal position in relation to contact did not really alter as a result of the 1996 reforms,322 later evidence has supported the prediction that the amendments would strengthen the pro-contact position of the court. Two evaluations of the changes effected by the Family Law Reform Act 1995 (Cth) concluded that the practices of judges and legal practitioners subsequent to those reforms led to fewer no-contact orders, greater restrictions on parents relocating, and increased efforts to preserve contact with non-resident parents.323 The 2006 reforms have gone a step further in promoting parent–child contact through the primary consideration aimed at building meaningful relationships between parents and children; however, protection from harm was also elevated to a primary consideration (see further, 9.28 on the interrelationship between these subsections). 9.91 When will a court suspend all contact between a parent and child? As indicated above, it is not common; however, as only the most difficult cases end in a trial, there will be circumstances where the court finds there is no benefit to the child in spending time with a parent. An obvious example would be where having contact with a parent would expose the child to an unacceptable risk of abuse. Other recent examples include where the relationship between the parents was so toxic that the child would only be harmed by forcing contact to continue;324 where one parent was failing to cope emotionally with a separation and frightened the children by expressing suicidal and homicidal thoughts in their presence;325 where a parent with a dangerous personality was found to have been physically and emotionally abusive towards the other parent, to have little relationship with the child and to cause the carer parent to be fearful;326 where the father’s generally appalling behavior, attitude and beliefs, particularly in relation to the mother, were such that the judge could see no benefit to the children in contact;327 and in an

‘unusual’ case where, despite the carer parent having adverse findings made against them, it was found that the children were implacably opposed to having contact with their other parent.328 [page 625]

Orders for children to spend time with nonparents 9.92 While the above discussion shows the court’s tendency towards an assumption in favour of a child spending time with a parent, courts have generally not been as readily predisposed to grant such orders in favour of non-parents. This approach was illustrated in the 1979 case of Marriage of E & E (No 2),329 which involved an application for access by the child’s uncle and aunt who had assisted in caring for the child for a number of years. Strauss J held that: Where, as here, the question of access by strangers arises it cannot be assumed, as is in the case of a natural parent, that a continuing association will benefit the child. Before any such order is made in favour of strangers there ought to be convincing evidence that the welfare of the child requires it.330

However, over time the benefits to a child of contact with his or her extended family have been increasingly recognised. In 1990 in Stevens & Lee,331 though contact with the maternal grandmother was not granted on the particular facts, Kay J expressed strong sentiments in favour of promoting a child’s contact with his or her extended family. Then, in the 1995 case of Bright v Bright & Mackley,332 Treyvaud J took little convincing to make an order that a child spend time with her paternal grandparents, despite the opposition of both parents.333 9.93 As a result of the last two rounds of reforms to the FLA, the position of third parties has been strengthened where they can demonstrate that they are a person significant to the care, welfare

and development of the child: see s 60B(2)(b). The position of grandparents in particular has been given at least symbolic support by the specific inclusion in ss 65C(ba) and 69C(2)(c) of a grandparent of a child as a category of person who may institute proceedings under the Act, whether in relation to a parenting order or otherwise. The revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) is very clear that the intention of the various amendments in this regard is to emphasise the importance to children of familial relationships; in particular, relationships with grandparents. In view of the clear terms of s 60B(2)(b), the expectation has been that the court will now be even more willing to support claims by third parties, especially grandparents, acknowledging the value to children of contact with persons, other than parents, who are significant in their lives. [page 626] In deciding such cases, a number of the mandatory additional considerations in s 60CC(3) are of particular relevance, including any wishes expressed by the child as to whether such contact should take place (s 60CC(3)(a)), the nature of the relationship of the child with the grandparent or other third party (s 60CC(3)(b)), and the degree of contact that has taken place between the child and that person (note in this context the relevance of s 60CC(3)(d) (ii)).334 Director-General, Department of Families, Youth & Community Care v Reissner335 is an example of a post-1996 decision involving a grandparent. Here, the maternal grandmother (the mother being dead) sought contact with her six-year-old grandchild, who was living with his father in Australia. The father did not oppose contact, just an order requiring him to send the child to the United States where the grandmother lived (and where the parties

had lived immediately prior to the mother’s death). The father proposed telephone, mail and email contact. The grandmother had in fact previously obtained contact orders in Arizona, and in effect was seeking to enforce the orders through the Hague Convention on the Civil Aspects of International Child Abduction 1980. The grandmother had played a significant role in the child’s life while he was in the United States and their relationship had been strong. However, since moving to Australia with his father and stepmother, the child was expressing reservations at being forced to visit his grandmother. In spite of this, Lindenmayer J ordered that the child return to the United States twice a year for two weeks each time, with the father paying 80 per cent of the travel costs, saying: So I believe it is important for the child’s long term welfare to be able to maintain a proper relationship with not only the maternal grandmother but with other aspects of her environment in the United States. And if one adds to that the fact that the child is fundamentally a citizen of the United States, having been born there, and whose family and all his connections, both family and cultural are there, then I think it becomes almost overwhelming for the Court to conclude that it is in the child’s best interests, even if they were to be regarded as paramount, to do all that it can to maintain those connections.336

9.94 The Full Court decision in Jacks & Samson337 provides a striking post-2006 example of orders being made that children spend time with their maternal grandparents. Both parents (who were not separated) opposed the contact due to the mother’s concerns in relation to her father, based on her perceived experiences [page 627] of him as a parent. She characterised him as a volatile and rageprone parent and considered herself traumatised by his behaviour. These allegations were not entirely dismissed by the maternal

grandmother, though a much less extreme version of events was recounted by her. The children were happy and doing well, and there was evidence that an order for contact would have a negative impact on the mother and that it might adversely impact on her care of the young children. There was, however, also expert evidence to the effect that the children would benefit from contact with their maternal grandparents. A regime of contact was ordered, starting with supervised contact and moving on to unsupervised contact. The orders also permitted the mother’s brother to be present when the children were with their grandparents. In essence, the trial judge found the benefits of contact outweighed the other considerations, but provided safeguards through supervision and by ordering the mother to attend psychotherapy (which she had apparently indicated she would). As the Full Court found that the trial judge’s conclusion was open on the evidence (ie it did not fall outside the reasonable bounds of the trial judge’s discretion), the appeal was disallowed. It was notable that some emphasis was placed on the fact that, prior to 2001, the grandparents had had a positive relationship with the children and had sought to maintain that. This was not, it was said, a case of grandparents seeking belatedly to enter the lives of their grandchildren. Judgment in Jacks & Samson was delivered on 19 November 2008; seven days earlier, Benjamin J had handed down his decision in Church v S Overton.338 The Full Court in Jacks & Samson did not consider it necessary to address as a separate issue the question of interfering with parental responsibility in the sense of deciding for the parents who their children should associate with. This was very much in the mind of Benjamin J, however. The applicant grandfather in Church v S Overton applied for ‘spend time with’ and communication orders in respect of the children of all of his three adult daughters. All daughters (and the partners of two of them) opposed anything but minimal contact and claimed they, and their families, would suffer distress if more contact were permitted. They further argued that parents should generally be

left to decide on the best relationships for their children. The grandfather submitted that the FLA privileges the position of grandparents. Benjamin J made an order permitting the grandfather to send letters and cards to the children, but otherwise refused the application. Benjamin J noted that it was parents, not grandparents, who were placed in a special position by the FLA. However, there is clearly a legislative intent that grandparents be considered and their value to children recognised; where it is in their best interests, children are entitled to a relationship with their grandparents. The views of the parents as to contact with grandparents, while significant, are [page 628] not determinative, and in this context Benjamin J referred to the first instance decision in Jacks & Samson. Benjamin J went on, however, to say: In the absence of substantive issues as to the child’s best interests, it is not the role of a court to peer over the shoulder of functional parents and second guess the decisions they make regarding the upbringing of their children. A court should only intervene in such decision-making in a cautious, careful and thoughtful manner and consider whether a better approach is to make no order at all.339

The impact of a child not wanting to spend time with a parent 9.95 As contact is a right of the child, not the parent, in theory this would suggest that contact would not be ordered where a child rejects it. There are a number of early authorities that illustrate this approach. One example is Marriage of Mazur,340 which involved an application by a father to spend time with his three children. The eldest of the children, a boy of about 10, refused to see the father. Wood J held that the boy:

… should not be compelled to have contact with his father because I am firmly of the view that the disadvantages of the coercive situation that would have to be set up to administer this would totally outweigh the prospect of any advantage which such contact may offer.341

In adopting a non-coercive attitude towards the reluctant child, Wood J based his decision in part on s 43(c) of the FLA requiring the Family Court exercising jurisdiction under the Act to have regard to the need to protect the rights of children and to promote their welfare. Commenting on this provision, Wood J continued: It is very salutary indeed to find such an expression in the Family Law Act 1975 and to note that the protection of rights is allied with the obligation upon the court to promote the children’s welfare. This would seem to me to suggest that when the welfare of the child is being taken into account the child’s rights must certainly not be overruled. I think it is to be borne in mind that when the marriage of parents is dissolved and they are not able amicably to arrange for the future custody, access and welfare of their children a court which is called upon to adjudicate in this very delicate situation must have regard to the fact that children have their own lives to lead and that they, as well as their divorced parents, have to make a wide manner of emotional readjustments, and in many cases determine for themselves attitudes of morality and responsibility towards their now separated parents which children in a unified family are spared from having to decide.342

[page 629] 9.96 There have, however, also been instances where the courts have been inclined to force a child to see a parent where it was against the child’s wishes. In Gallaghan v Gallaghan,343 a decision predating the FLA, Selby J compelled access in the case of an 11-year-old boy with a 74year-old father, saying it was a matter for the court, and not for the child, to decide whether the father should have access, although the child’s wishes should not be ignored.344 The approach in Gallaghan was approved by the Family Court in Keaton & Keaton,345 a first instance decision, in which Rourke J held that where a child does not wish to see one of his or her parents, it was not necessarily in a child’s best interest to exclude a parent from contact completely. Rourke J put forward the following view: He may find his father’s company boring. He may be embarrassed when his friends see him with the old man. But even if his visits amount to a duty rather than to a pleasure, he is not too young to be placed under a duty to his father and brought to recognise that life involves duties as well as privileges. It would do nothing towards the building of his character and preparation for the obligations of citizenship to allow him to avoid this duty because he finds it uncongenial.346

In view of the legislative changes made over recent years, it is arguable that the approach taken in Keaton & Keaton would not now find support, or at least that the reasoning would be couched in different terms. Now that spending time with a parent is expressed as the right of the child, there is an even stronger case for holding, as the court did in Marriage of Mazur,347 that a child should not be compelled to have to spend time with a parent or other person, especially where the child is of sufficient age and maturity to have made a rational and informed decision, free of parental influence. As was reasoned by Fogarty J in Marriage of N & S348 (see 9.89)

(in the context of the child’s right of contact under Art 9.3 of the United Nations Convention on the Rights of the Child 1989), to have a right to do something does not mean that one is required to do the thing which the right allows or enables. Rather, it prevents a person from being prevented from doing that which the right preserves.349 Thus, although the child’s right of contact in s 60B(2)(b) is qualified by virtue of the fact that it is subject to the paramountcy principle in s 60CA, it would seem inappropriate to compel a child to exercise that right contrary to a child’s adamant refusal. As was pointed out by Wood J in Mazur, the disadvantages of a coercive situation would totally outweigh the prospect of any advantage that such contact [page 630] may offer. For a compelling example of this principle, see Elspeth v Peter350 at 9.75. In this context, regard should also be had to the discussion about the child’s view (see 9.40ff) and, in particular, the reference there to the question (little discussed in the case law) as to when a child, in fact, becomes ‘Gillick-competent’ to make these decisions for themselves.

The intractable nature of ‘spend time with’ orders 9.97 It has long been recognised that, in practice, there have been problems associated with contested contact cases. In Marriage of Rossi,351 Fogarty J described this as the most difficult and intractable area of the court’s jurisdiction. No doubt, one of the main reasons for this is that because of the ongoing nature of the arrangements, there is inevitably plenty of room for problems and disagreements between the parents. 9.98

Due to continuing concerns about contact, the Australian

Law Reform Commission together with the Family Law Council undertook an inquiry into complex contact cases and the Family Court, the main object of which was to identify the characteristics and causes of difficult contact cases and to develop recommendations directed towards reducing the adverse effects of conflict and repetitive litigation on children and families. Since that report,352 enforcement of contact orders has become an area of particular concern, and this is discussed further at 8.126ff. The focus of debate is generally on the difficulty of dealing with cases of non-compliance with parenting orders by the parent with whom the child spends the most time. An order is made that a child will spend time with (or live with) the other parent, but the child is not made available at the specified times. These situations do present considerable difficulties for the court. However, it must be remembered that if a parenting order is made for the benefit of the child, then non-compliance by either parent is equally significant. Thus, electing not to exercise contact with a child has the same potential for detriment to the child. The reality is that it is even more difficult to force a parent to see a child at specified times, as ordered, than it is to force a parent to hand over a child to the other parent, as ordered. While both are very difficult from an enforcement point of view, courts are generally only faced with applications to enforce contact orders against primary carers. The reality is that parents wishing to have contact themselves are far more likely to be inclined to invest the time and money in enforcing contact, than are primary carer parents faced with a parent failing to have the ordered contact. In both cases, parents may see the benefit of contact to the child, but in the former case there is also likely to be a great deal more personal benefit from pursuing an enforcement application. Given that [page 631]

orders that include overnight care are now generally styled as ‘live with’ orders (see 8.49), this issue applies equally to situations where the child ‘lives with’ one parent much less than the other.

Allegations of child sexual abuse in contested child proceedings 9.99 Allegations of child sexual abuse made in the context of contested child proceedings are only one aspect of a much broader legal issue that spans a number of jurisdictions and may involve criminal law proceedings and child welfare proceedings. This topic is also addressed in Chapter 3, dealing with violence and abuse. 9.100 One of the biggest problems facing the law in relation to child sexual abuse cases is the variety of conflicting interests and considerations that arise. In criminal law proceedings, the object is to establish the guilt or innocence of the alleged offender who is presumed to be innocent until proven guilty — the child’s role is ‘merely’ as witness in such proceedings. However, for the purpose of contested child proceedings under the FLA, the best interests of the child are the paramount consideration (s 60CA), and in determining the child’s best interests, the court is required to have regard, as a primary consideration, to the need to protect the child from physical or psychological harm caused or that may be caused by being subjected to or exposed to abuse: s 60CC(2)(b). This primary consideration reflects s 60B(1)(b), which states that one of the objects of Pt VII is to ensure children’s best interests are met by providing such protection. However, there is another primary consideration, and this promotes parent–child contact. Thackray J concluded that the 2006 reforms (which introduced the primary considerations) did not change the obligations on decision-makers in contested child cases where sexual abuse had been alleged, and that pre-amendment case law therefore continued to apply.353 One issue that raised concerns after the 2006 amendments, however, was the fact that the FLA did not specify the relationship

between the two primary considerations.354 This was rectified with the insertion of s 60CC(2A),355 which requires the court, when applying the two primary considerations, to ‘give greater weight’ to the primary consideration directed at protecting children from harm. There is limited case law as yet on the impact of this new provision, which was introduced to remedy concerns that certain provisions introduced in 2006 were encouraging parent–child contact to be promoted over the safety of children: see 8.13–8.14. Thus, this section needs to be borne in mind in cases where sexual abuse allegations are made. The following discussion deals with case law prior to the introduction of s 60CC(2A) and then comments on the impact of s 60CC(2A). [page 632] 9.101 For a number of largely practical reasons, contested child proceedings involving allegations of child sexual abuse present extraordinary difficulties for the Family Court. In most cases, the evidence is inconclusive — only rarely has the abuser been prosecuted and convicted in criminal proceedings, in which case the court can proceed on the basis of established guilt.356 The unsubstantiated nature of many such allegations is not surprising, given all the circumstances. The reasons for this have been well explored by Chisholm.357 Typically, there are no independent witnesses to the abuse, and an abuser will vigorously deny any allegation of abuse (as will a person who has not engaged in abuse). Abusers often seek to preserve secrecy by a variety of threats or promises to the child. As a consequence, and because of the very nature of the conduct involved, children find it very difficult to discuss the subject, especially with strangers. Where young children are involved, doubts may be raised about the reliability of the child’s statements. Medical evidence may be of some assistance, but will rarely be decisive. Even where it does indicate that sexual abuse

has occurred, it is unlikely to establish conclusively who has perpetrated the abuse. For all these reasons, child abuse allegations raise significant evidentiary problems. There is also, of course, the possibility of a deliberately false allegation of child sexual abuse being made by a parent, as a desperate strategy to gain an advantage in contested child proceedings.358 While this is a possibility, the likelihood of it occurring should not be overstated. It is likely that in many cases where such allegations are raised, the person alleging the abuse (usually the mother) is acting out of genuine concern for the welfare of the child. However, it is not unreasonable to suggest that some maliciously false allegations may be made in the context of contested child proceedings, just as other false allegations are undoubtedly made by parties in other contexts from time to time. Equally, abusers will falsely deny the abuse. Research has consistently shown that significant numbers of the population are sexually abused as children, with figures of around 10 per cent for boys and 20 per cent for girls.359 Men are the predominant abusers and male abusers are most likely [page 633] to be relatives of the victim. There is no reason to suspect that child abuse will be less common in the separated population than in the general population. Indeed, disclosures of abuse may cause a parental separation, or parental separation may provide the opportunity for children to disclose abuse. One would therefore expect to see such allegations in the family courts in at least the same, if not greater, numbers as in the general population — it should come as no surprise that dealing with child sexual abuse claims is therefore core business for the family courts. Given the significance of such an allegation, one would also expect it to be denied (regardless of whether or not it is true) and for the matter to proceed to trial. It is therefore to be expected that the number

of claims of child sexual abuse in family court judgments may appear disproportionately high. It does not follow, however, that false sexual abuse allegations are more common in family court disputes simply because the reported cases show a significant number of allegations of sexual abuse of children. Since the mid-1980s, there has been increasing public, and judicial, concern that many mothers routinely make deliberately false allegations of child abuse in child proceedings, that such malicious claims are on the rise and that, when made, the inevitable result is the end of contact with the alleged abuser, usually the father. This concern has been evident in public comment, academic literature and judicial statements, in spite of the fact that there is no data to support these claims.360 In fact, history has shown that (as with rape, for example) it is notoriously difficult to establish child sexual abuse allegations and extremely unlikely that a parent’s contact will be terminated on the basis of an unsubstantiated claim.361 Indeed, making a false allegation would involve a serious risk of having the child placed in the care of the other parent. As we have indicated, it is extremely difficult to establish sexual abuse where it has occurred, let alone where it has not. If the decision-maker reaches the conclusion that the parent has made a false allegation of this kind, for obvious reasons they may well conclude the child’s interests will be better served by living with the other parent.362 Lawyers would, of course, be well aware of this when advising parents who are considering making such an allegation. [page 634] Bearing this in mind, it is disconcerting that some judges still refer to such allegations as easy to make, but difficult to disprove.363 This was a judicial statement often made in rape trials and which is now considered unacceptable in that forum. In reality, there may be many reasons why parents may consider

sexual abuse allegations difficult to bring forward and there is no evidence that such allegations are hard to disprove in the Family Court. If, as a result of this expressed concern over maliciously false allegations, the Family Court is overly preoccupied with false positives (ie child–parent contact being diminished where there has been no abuse), there is the danger that the issue of false negatives (ie abused children being compelled to have contact with their abuser) will be given insufficient attention.364 9.102 We can see, therefore, that determining child placement in disputed cases, or whether a parent should be permitted to spend time with a child, in the context of an unsubstantiated claim of child sexual abuse, is an exceedingly difficult task for the family courts. Unlike in a criminal court, where the accused would benefit from a presumption of innocence, the question in the Family Court is what orders best serve the interests of the child, and in that context, protection from harm must be given the most weight (s 60CC(2A)). 9.103 There are two primary issues that need to be addressed in cases where an allegation of child sexual abuse has been made: first, precisely what needs to be established in relation to the alleged conduct; and second, what is the required standard of proof. In 1988 the High Court considered the correct approach in these cases in M v M.365 This involved an application by the father to spend time with the child, but access was denied as a result of allegations of child sexual abuse against the father. There was no conclusive evidence of abuse. Although the trial judge was not satisfied on the balance of probabilities that the father had abused the child, he considered that there was a possibility that the father had done so. He consequently made orders denying contact so as to eliminate any risk of abuse. 9.104 Subsequent appeals brought by the father to the Full Court and ultimately the High Court were dismissed. The

appellant had argued that the court must, in the first instance, determine whether the alleged sexual abuse has occurred, and only if so satisfied on the balance of probabilities, does the court then proceed to consider whether there is a real and substantial risk of further abuse occurring. A unanimous Full Court rejected this argument, identifying as its basic flaw the assumption that the allegation of sexual abuse is the paramount issue for [page 635] determination by the court. Their Honours held that by virtue of the statutory direction under the FLA, the ultimate and paramount issue to be decided in contested child proceedings is whether the making of the order sought is in the best interests of the child. In the opinion of the court, the resolution of such an allegation is subservient and ancillary to the court’s determination of what is in the best interests of the child, and the High Court cautioned against the court making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.366 The court held that in determining what is in the child’s best interests, the role of the court is to determine the risk of sexual abuse occurring and the magnitude of the risk. In defining the appropriate test to be applied, the High Court held that a court will not grant custody or access (now parenting orders that a child live, or spend time, with another person) if that custody or access would expose the child to an unacceptable risk of sexual abuse.367 Their Honours were of the view that attempts to define with greater precision the magnitude of risk that would justify a court denying a parent access, involved striving for a greater degree of definition than the subject is capable of yielding. 9.105

In practice, there will inevitably be difficulties in

determining whether an ‘unacceptable risk’ exists in a particular case: indeed, the test appears to be somewhat circular in its operation — an unacceptable risk is a risk which is not acceptable; the test laid down by the High Court does not, of itself, purport to define the point at which a risk of abuse becomes unacceptable. This is a matter that is left for the determination of the judge, in the exercise of his or her discretion. Although there was some suggestion in the case of K & K368 that where there is prima facie evidence of abuse, the onus in effect falls on the person against whom the abuse is alleged to satisfy the court that he or she did not abuse the child,369 in M & H370 the Full Court clearly indicated that there should be no onus on a party to disprove the abuse. In exploring precisely how to apply the ‘unacceptable risk’ test, the following statements of Fogarty J in Marriage of N & S371 have been approved by the Full Court in Napier & Hepburn:372 Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of

[page 636] the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard. In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child? This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an

unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case.373

9.106 Despite its endurance, the unacceptable risk test has been the subject of considerable criticism, even before the introduction of s 60CC(2A). As Faulks DCJ noted in Kings & Murray:374 … I do not derive any significant assistance from the concept of unacceptable risk. If, as I have suggested, I am unable conclusively to determine on the basis of the evidence before me whether something has happened or not, in my opinion, it seems to me that it is almost impossible for me then to say that there still might be a risk that it something [sic] may have happened and that therefore the child should spend no time with her father … Nor could I alternatively conclude that there is no risk, because I have not been able to find it and that therefore there should be unqualified time spent between the father and the child. (original emphasis)375

This highlights a fundamental problem with the unacceptable risk test. Risk assessment involves considering probabilities. The probability of something happening can only be determined if one has some known facts to work with, and in these cases the only real predictor of a risk of future sexual abuse, is the occurrence of past sexual abuse. Thus it is not possible to assess the risk of future abuse with any accuracy if there is real uncertainty as to whether the alleged past abuse occurred. The difficulty lies therefore with those cases that fall in the middle. [page 637] Where it can be established that abuse did not occur, then there is no need to assess risk. Where it is established that abuse of this, or another child,376 did occur, then the risk of future abuse of this child can be assessed. However, many cases involve a situation where there is an allegation of abuse, some evidence consistent with abuse, but it is impossible to conclude one way or the other whether in fact the abuse occurred. What happens in practice in cases where abuse cannot be established, is that the court tends to find that there is not an unacceptable risk of abuse377 and contact

will occur. The irony of this is that the finding on abuse (or lack of it) does in fact become all but determinative of the outcome (in contrast with the statements in M v M). Indeed, this is evident when one considers the factors outlined in Marriage of N & S378 (see 9.105): those factors primarily go to the question of whether the abuse occurred, showing the (arguably inappropriate) conflation of that question with the question of the risk of future abuse.379 9.107 What impact has the introduction of s 60CC(2A) had on this case law? Various judicial statements have suggested that this section does not change the law in any significant respect.380 However, we would argue that, as a matter of statutory interpretation, that cannot be correct. Indeed, there is a case to be made that M v M no longer applies. First, the clear words of s 60CC(2A) must mean that, of all the relevant considerations, protection from harm must always be given priority over all other considerations. Whereas the other primary consideration can be outweighed by other additional considerations, this is not true of the protection from harm consideration (see 9.26). Self-evidently, if protection from harm is compromised on the basis of other considerations, then the most weight has not been given to protection from harm. Second, this interpretation is [page 638] supported by the purpose of the amendment, as evidenced by the history leading to its introduction and the relevant Explanatory Memorandum.381 Third, M v M proceeded on the assumption of a balancing of considerations in a legislative context where there was no direction as to how those considerations should be balanced; that is no longer the case. Young and colleagues have suggested that these arguments, together with the inherently problematic nature of the ‘unacceptable risk’ test, support the

following approach by the court to the exercise of discretion, where there is evidence of harm, and that this should apply in relation to sexual abuse cases as well: … the court must: So far as is possible, make orders that seek to ensure the protection of the child from harm in light of the evidence of harm Of the remaining factors, generally place most weight on the benefit to a child from having meaningful relationships with both parents but may, where the facts require it, place as much, or more, weight on an additional consideration, and Adopt the same approach whether the matter is an interim or final hearing …382

9.108 What standard of proof applies when deciding if there is an unacceptable risk of abuse?383 The Full Court has confirmed repeatedly that it is a very high civil standard.384 A helpful summary of the position is provided in Johnson & Page.385 As that case reminds us, s 140 of the Evidence Act 1995 (Cth) must be considered in determining how to apply the civil standard of balance of probabilities in these cases. That section provides that the following matters are relevant to this inquiry: (a) the nature of the cause of action or defence; (b) the nature of the subject matter of the proceeding; and (c) the gravity of the matters alleged. These combined factors in cases involving child sexual abuse allegations have led the court to apply the very highest possible civil standard of proof. However, the cases focus on the gravity of the matters alleged for the alleged abuser. Little attention has been given to the nature of the cause of action (a parenting dispute where the child’s best interests are the central issue) and the gravity for the child in permitting contact where abuse is not proved, but is in fact occurring. As has been noted [page 639] elsewhere, it might as easily be argued that the standard required to find there is no unacceptable risk of abuse should be at the high civil end.386

9.109 Sexual abuse allegations in parenting proceedings invariably raise issues about supervision being required when a parent spends time with a child, and so the circumstances in which such an order might be appropriate have been considered in a number of cases.387 These cases have exposed some differences of view in relation to these matters. In Marriage of Bieganski (B v B),388 it was held by the Full Court that where a trial judge has made a finding that an unacceptable risk of sexual abuse exists or that sexual abuse did occur, the trial judge should look to the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised contact is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised contact is not appropriate because of the court’s obligation to protect such children from harm.389 Their Honours were of the view that in assessing whether an unacceptable risk exists, it is relevant to take into account the anxiety of the parent with whom the child lives with regard to the exposure of the child to harm in view of the potential impact that such anxiety can have on that parent’s ability to care for the child. The court held that where contact has been suspended for a while and the court is satisfied that there is no longer an unacceptable risk of abuse, supervised contact may then be capable of being ordered for the time-limited purpose of re-establishing a relationship between that parent and the child. However, the court stated the view that supervised contact is not appropriate as a long-term measure.390 On the issue of who should supervise the contact, it was held that it is undesirable in most cases for family members of the access parent to supervise children during the contact period in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. In this particular case, where the trial judge had ordered that contact be

supervised, nominating the husband’s mother as the principal supervisor, it was held that the order did not protect the rights of the children, nor promote their welfare, and it failed to provide them with adequate protection from further harm. [page 640] On the facts, neither of the supervisors nominated to supervise contact believed that the husband had abused the children, and the wife was justifiably distressed at the prospect of contact in such circumstances. General comments were made by the court regarding the expectations of supervisors, namely that they are available for the protection of the child, and that they are in a position to intervene where necessary; their Honours thought it unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period. Although Marriage of Bieganski (B v B) has been followed in later cases,391 its reasoning has not gained universal support and Re C & J392 arguably represents some watering down of the approach in Bieganski. In Re C & J, the trial judge had made a statement that ‘in my view supervised access is never an appropriate measure in relation to a final access order. If access must be supervised, then it is probably better to make an order for no access’.393 The orders made by the trial judge had been for unsupervised contact. In their joint judgment, Fogarty and May JJ disagreed with this statement of the trial judge and found it unduly restrictive of his discretion in relation to children to approach the matter in that way. They continued: It seems likely that his Honour felt obliged to express his views about never ordering supervised access because of the decision of the Full Court in B and B … We think it is fair to say that aspects of that judgment have not commanded universal support and have from time to time been regarded as being too rigid. Whether that arises because the views in that case may have been interpreted too

literally or whether the problem lies within the expression of those views may be a matter of opinion, but we think some further discussion is justified. The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option. The significance of B’s case was as a timely reminder that supervised access was not to be used routinely and by way of a compromise in cases of this sort. The Court pointed out a number of difficulties inherent in that approach. Firstly, such order may not give proper consideration to the real issues. Secondly, practical difficulties are usually encountered in arranging satisfactory supervisors, especially long-term. Thirdly, whilst supervision may protect a child from a repetition of sexual or other abuse, it may not protect the child, and indeed may exacerbate the situation in relation to what might be described as the psychological consequences of the child being brought into contact with a person who has abused or may have abused that child.394

[page 641] The matter was remitted for retrial, as on the facts supervised contact may well have been appropriate, yet the trial judge had held the erroneous view that supervised contact was not an available option in this case. 9.110 In other instances, there has been outright rejection of some of the principles laid down in Bieganski’s case: see, for example, the dissenting opinion of Kay J in Koutalis & Bartlett.395 A significant factor in Kay J’s reasoning was the reliance placed on Art 9.3 of the United Nations Convention on the Rights of the Child 1989. This Convention requires state parties to respect the right of the child, who is separated from one or both parents, to maintain good personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. On the basis of this provision, Kay J argued that proper weight must be given to the child’s right to maintain personal relationships with both parents and that this justifies a more permissive approach to supervised contact in cases where sexual abuse has been alleged. In particular, Kay J defended supervised contact as a means of enabling contact where unsupervised contact would not be in the child’s best interests. This may be the

case because there has been found to be an unacceptable risk of sexual abuse, in which case supervised contact can enable contact between parent and child to continue in appropriate cases, while the child is safe and protected. Alternatively, in circumstances where there has been no finding of unacceptable risk but the custodial parent implacably believes that sexual abuse has occurred, supervised contact can prevent disruption to the parent– child relationship, protect the accused parent from further accusations and allay the fears of the parent with whom the child lives. Kay J was also critical of the narrow approach taken to the question of a suitable supervisor in Bieganski’s case and by the trial judge in Koutalis & Bartlett. In his dissenting judgment in the latter case, his Honour suggested that the mere fact that the supervisor is a relative of the non-custodial parent and that the supervisor does not believe that anything untoward has occurred, ought not be a disqualifying factor. The important issue is whether the court can be satisfied that the supervisor will respond if a circumstance arises that requires the child to be protected from the non-custodial parent.396 See also Kay J’s decision in Marriage of N & S (see 9.106), where these views were reaffirmed, but in this case representing the view of the majority, supported by Hilton J. In the case of Re C & J (see 9.109), Kay J gave his strongest criticism. In his view, in cases where there is no proven misconduct, it is generally better to have supervised contact than no contact at all.397 More recently, in Re W (Sex abuse: standard of proof),398 the Full Court, in overturning Nicholson CJ’s finding of sexual abuse against the father and [page 642] consequent cessation of contact, made some very clear comments

in relation to the balancing of children’s right to be protected from abuse and their right to contact with their parent, even when that parent is an abuser: The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent–child relationship. The court needs to remain conscious of this imperfection at all times.399

After referring to Kay J in Koutalis & Bartlett, the Full Court then said: The lessons to be learned have not changed. The risk that the court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.400

9.111 The difficulty with the approach in Re W (Sex abuse: standard of proof) (which has attracted some criticism) is that it has the potential to underestimate the impacts on children of being forced to spend time with abusers. The Full Court did not explore the psychological literature relating to the consequences of sexual abuse in drawing conclusions about the effects on abused children being forced to spend even supervised time with abusing parents.401 This was noted by Brown J in McCoy v Wessex,402 who, after referring to this passage, said: With respect to the Full Court, one might as well say that the harm and injustice that flows to a child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of the child. Nevertheless, I am bound by the exposition of principle in the judgment.403

[page 643]

As discussed above, such an approach seems to place more weight on false positives, than false negatives, when both are extremely concerning outcomes. Further, the last sentence of this quote focuses on the harm and injustice to the parent — and, whether or not one agrees with the sentiment being expressed, this is not the primary concern of the court. Justice Fogarty (now retired from the Family Court of Australia) has also criticised the approach in Re W (Sex abuse: standard of proof), and in a very detailed discussion of decision-making in this area, concluded that recent decision-making has not followed M v M404 (see 9.103). In his view, the standard of proof has been misunderstood, there has been too much emphasis on the effects on the alleged abuser of denying contact and as a result the paramount consideration, the child’s best interests, has been compromised.405 9.112 As we have indicated, in many cases it will simply be impossible to ascertain with any certainty whether there has been sexual abuse of the child or, if abuse is established, who perpetrated the abuse. Nonetheless, an appropriately protective parent with whom the child lives may have a genuine belief, based on the evidence that does exist, that the other parent has abused the child. In such cases, the court has to take into account the impact any proposed parenting orders will have on the carer parent. One of the obligations of caring for a child is to protect him or her from abuse. Thus, a carer parent may genuinely feel that proposed parenting orders will expose the child to further abuse and this may impact on their ability to care for the child. Provided the parent’s belief is genuine, this is a relevant consideration. Where the parent’s belief appears, on the evidence, irrational and baseless, this may influence the court in its decision as to whether the belief is genuinely held;406 further, a genuine but irrationally held belief of abuse may be a factor leading a court to change the residence of the child.407 9.113 There are a number of matters relating to evidence that need to be considered in this context. Section 69ZV gives statutory

force to the long-established practice of the Family Court of admitting hearsay evidence of [page 644] statements made by children (as confirmed by the Full Court of the Family Court in S & P).408 This section provides that evidence of a representation made by a child, which could not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in proceedings under Pt VII of the Act. This would override any inconsistent provision in the Evidence Act 1995 (Cth) by virtue of s 8 of that Act, which allows for the specific evidentiary provisions in the FLA to prevail. However, this relaxation of the rules of evidence does not mean that procedural safeguards are abandoned altogether. In S v R,409 the admissibility of transcripts of police interviews recording the children’s disclosures of abuse was questioned where the police, as creators of the documents, were not called to verify the documents. The mother had also been permitted to give evidence of what the police told her the children had said in the interview. The unrepresented father did not challenge the admission of this evidence, and on appeal the trial judge’s failure to seek submissions from the father on this point was held to have amounted to a fundamental breach of procedural fairness, requiring a rehearing. However, as has always been the case in practice, the weight (if any) to be given to such hearsay evidence will remain a matter for the court to determine in the particular circumstances of the case. 9.114 Further, there are restrictions on medical or other examinations410 of children in cases involving allegations of abuse: s 102A. The effect of this provision is not to prohibit children being examined, but rather, more indirectly, to restrict such examination by ruling such evidence to be inadmissible

unless the prior leave of the court is obtained, thereby leaving it to the court to determine whether the particular examination proposed is appropriate. The relevant matters for the court to consider in deciding whether to grant leave for a child to be examined are set out in s 102A(3). However, the court does have an overriding discretion to admit evidence that is otherwise inadmissible under s 102A subject only to the requirements in s 102A(4). 9.115 The restrictions in s 102A reflect longstanding concerns about the detrimental effects on children of being unnecessarily exposed to multiple examinations. These concerns were aired in Separate Representative v JHE & GAW.411 This case involved a fiveyear-old girl who had been the subject of protracted custody and access proceedings following the parents’ separation in 1989. The wife had made allegations of child sexual abuse against the husband in early 1991, and since that time the child had been interviewed on about 20 occasions by a number of different people about those matters. The appeal before the Full Court [page 645] of the Family Court was from orders made in favour of the husband under s 102A of the FLA that he be granted leave to have the child interviewed by two experts nominated by him. Central to the husband’s case was the argument that he should be entitled to obtain this evidence as a matter of natural justice, as it was necessary in the presentation of his case. Nicholson CJ and Fogarty J went on to allow the appeal, as did Strauss J delivering a separate judgment. Their Honours held that the trial judge had failed to address the matters required to be considered under s 102A(3) in determining whether leave should be granted. Instead, he had relied excessively on the doctrine of natural justice, giving that overriding significance at the expense

of the welfare of the child. While acknowledging the value of expert evidence in cases where allegations of abuse are involved, their Honours emphasised the problems for children in being compelled to undergo multiple interviews and investigations, and the limited practical assistance that such additional evidence is likely to provide. In the words of Nicholson CJ and Fogarty J, further examinations: … will force the child to again go over painful experiences and recollections with little prospect of the litigation or the child’s welfare being advanced. The child is entitled to look to this Court to protect her from abuse by litigation.412

In relation to the question of the appointment of experts in cases generally, see 8.87–8.89.

Relocation cases 9.116 One area that has generated significant interest over the last decade is what are now commonly referred to as ‘relocation’ cases. These usually arise where the parent with whom the child is living proposes changing their and the child’s geographical residence, and this is opposed by the other parent on the grounds it reduces (or perhaps eliminates altogether) their opportunity to spend time with the child. Obviously, the more substantial the move, the more difficult (and usually more expensive) it will be for the ‘left behind’ parent to maintain contact with the child. In circumstances where relocation to another country is proposed, the provisions of the FLA restricting removal of the child from the jurisdiction apply: see 8.143ff. Relocation cases are common in Australia, and frequently reach trial. Chisholm has described these cases as the ‘San Andreas fault’ of decision-making in the area of parenting orders.413 This is because of the inherent tensions in relocation cases, which call on a decision-maker to balance two very significant, and potentially

[page 646] competing, interests — those of the child to spend time with, and be cared for by, both their parents and those of the parents to live where they wish. However, while relocation cases highlight the difficulties of applying the paramountcy principle in cases where the parents and children may have conflicting interests, they are not special cases as such — as the court has repeatedly stated, there is no special category of ‘relocation’ case.414 Having said that, as we shall see, the court has felt it useful to set out the principles that normally apply in such cases. 9.117 Both the 1996 and 2006 reforms were expected to be particularly significant to the outcomes in relocation cases. Prior to 1996,415 it was commonly said that a line of authority had developed that upheld the freedom of movement of the custodial parent, except in cases where this was shown to be contrary to the welfare of the child.416 The reasoning underlying this approach was said to be that it generally would not be in a child’s long-term interests to restrict unreasonably the movement of the custodial parent. Of course, if the moving parent was not bona fide (ie the move was designed to distance the child from the other parent), an application would not be successful. These earlier cases contained many statements confirming the need to consider the benefit to a primary carer of being able to move freely and the impact on them if they were denied the opportunity to move. Also highly relevant were the parent’s reasons for the move. 9.118 There was a fairly widely held view that the changes effected to Pt VII of the FLA in 1996 would necessitate a reevaluation of the earlier case law which might ultimately result in a change of emphasis in the approach of the court — away from upholding the custodial parent’s mobility rights, and with greater emphasis being given to the benefits of the child maintaining regular contact with the non-resident parent. Central in this

regard was the introduction of s 60B(2)(b) which stated that children have a right of contact, on a regular basis, with both parents and other people significant to their care, welfare and development. Further, in determining the best interests of a child, the best interests checklist was amended to include (in s 60CC(3) (e)) reference to: … the practical difficulty and expense of a child having contact 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.

[page 647] Some, however, argued that the new provisions did not demand a different approach, with essentially the same matters being relevant as before the changes.417 It was also argued that the freedom of movement of custodial parents prior to the reforms had not been as unconstrained as was often suggested, and that movement was in fact often restricted on the basis of considerations not consistent with the legislation.418 In particular, it was suggested that only parents with a ‘good’ reason for moving were likely to be successful in applications to relocate and that this de facto threshold test was inappropriate, as the reasons for a move should only be relevant where they relate to the welfare of the child.419 9.119 Following the 1996 amendments, there were many reported relocation cases,420 including two High Court decisions. The first High Court case dealt squarely with the question of whether it was appropriate to apply a threshold requirement of a good or compelling reason for relocating parents. In AMS v AIF,421 the parents (originally from Western Australia) were both living in the Northern Territory, but the father moved with his soon-to-be new wife to Western Australia. Shortly after that, the mother relocated to Perth with the child, but she was not happy and

wanted to return to the Northern Territory. The father sought to restrain that move. The trial judge considered the mother the preferred primary carer; however, it was clear from his reasons that he did not consider that she had a sufficiently ‘good’ reason for moving and placed significant weight on this in deciding to restrain her removal of the child from Western Australia. With the exception of Callinan J, all High Court justices upheld the mother’s appeal and found it was wrong to require a relocating parent to establish a ‘compelling reason’ for the move. Kirby J gave extensive reasons and highlighted the need to take real account of a parent’s right to freedom of movement and the significant impacts of curtailing that freedom.422 9.120 Relocation next came before the High Court in the case of U v U.423 This case involved an educated, previously wellemployed Indian woman who married, by arrangement, a man who also originated from India, but now lived with his [page 648] family in Australia. The mother moved to Australia, but her family remained in India. They had one child. After separation, the mother was unhappy in Australia, partly due to isolation and lack of employment opportunities, and partly due to being separated from her family. She returned with the child to India, without the father’s permission. For a period, the father travelled to India on a regular basis and at times even stayed with the mother’s family. The mother then agreed to return to Australia to give the marriage another chance, but things did not work out. The mother again attempted to return to India with the child without advising the father, but was intercepted. In the ensuing litigation, the father sought residence of the child or, if he was unsuccessful, that the

mother be restrained from relocating with the child. The mother sought residence on the basis that she would live in India. In cross-examination, the mother was asked what she would do if she could not take the child with her and, not surprisingly, she indicated she would stay in Australia. The trial judge therefore considered there were three proposals before him: residence to the father; residence to the mother in Australia; or residence to the mother in India. Ultimately, he held that the child’s interests were best promoted by the second of those options. In the High Court, the mother argued that the trial judge had erred in treating her response to a question in cross-examination as a ‘proposal’ and that he should have considered the matter on the basis of the two proposals presented by the parties. In essence, the mother argued that the trial judge had failed to evaluate, and compare, the two proposals put by the parties. A majority of the High Court (Gaudron and Kirby JJ dissenting) dismissed the mother’s appeal. In their Honours’ view, the trial judge had considered all the relevant evidence and was clearly not bound by the parties’ proposals in deciding what parenting order was best for the child. Hayne J took this one step further, suggesting that in a case such as this it might have been possible for the mother to put the question as to why the father should not move to India to be with the child.424 This was, at the time, a novel suggestion. However, it was a clear and authoritative finding by the High Court that the Family Court is not limited to considering the proposals put by the parties. 9.121 These cases were decided before the 2006 reforms;425 it might be surmised that those reforms have made it more difficult to succeed in a relocation application (as was predicted in relation to the 1996 reforms). In a case decided not long after the amendments were introduced, M & S,426 Dessau J noted that while the new provisions did not explicitly change the required approach to relocation cases, ‘the amended Act does provide a context, through its objects, principles and

[page 649] particular considerations, that is substantially different from the context in the previous legislation’.427 Her Honour went on to hold that the approach set out in Goode v Goode428 (see 8.62 and 9.3) ought to be adopted.429 Finally, in response to a submission by the father to the contrary, her Honour made it clear that, whatever the consequences of these new provisions for the exercise of discretion, it is certain that they cannot have the effect of thwarting all relocation applications, as this was clearly not the legislative intent.430 There have been many Full Court decisions now that have considered the post-2006 law on relocation.431 The current position is that: the child’s best interests will be the paramount, but not sole, consideration; the ‘right’ of parents to choose where they live must be considered, but where the child’s interests require it, parental interests may ultimately have to give way; parents are not required to show a ‘compelling’ reason for a move, but their reasons for moving may nonetheless be relevant to the inquiry; the court is not bound by the parties’ proposals,432 and if the evidence suggests the child’s interests require it, the court may order an arrangement that was not proposed by the parties;433 the court should, however, carefully consider the parties’ proposals. It is not sufficient to compare the relocation against the status quo;434 the court may order a parent to change their place of residence to facilitate care;435 international relocation does not present a special case, but the circumstances flowing from such a move may make it more difficult to secure court permission (as it may make maintaining

parent–child bonds more difficult due to distance and the expense of travel); and in the normal way, the court should consider the evidence under the s 60CC factors and then consider the application of s 65DAA (though this process is not mandatory). In considering the s 60CC factors, by virtue of the issues raised in a relocation case, some factors may assume particular importance. This legislative pathway must be followed clearly, rather than inferentially.436 [page 650] The Full Court has also confirmed that there is no principle that interim relocations should be sparingly granted where there has been a unilateral relocation by a parent.437 The notion that the court is not bound by the parties’ proposals, and the power of the court to make orders constraining or requiring the movement of a parent, are significant developments of the jurisprudence in this area and require further consideration. In Sampson v Hartnett (No 10),438 the Full Court reviewed a decision by Moore J that involved parenting applications in respect of two children under four. The father lived in Sydney and, since the parties’ separation in late 2004, the mother had been living in Geelong, where her family lived. The final orders in effect required (though this was not stated) that the mother move with the children to Sydney, by ordering that the children live in Sydney, and that they live with the mother and have increasing contact with the father. Unlike in U v U439 (see 9.120), the mother had made it clear at trial that she did not intend moving to Sydney. Indeed, the father was also clear that he did not seek that the mother move to Sydney; rather, he proposed the children live with him and that he pay the bulk of the costs associated with contact. The children did not have a strong relationship with the father, due, Moore J found, to the inappropriate attitude of the mother. However, her Honour thought it critical that both parents

play a part in the daily lives of the children. Moore J considered it impractical for the father to move to Geelong, as he had another child in his care and the mother of that child lived in Sydney. As the majority of the Full Court noted, Moore J’s decision raised squarely the issues of the court’s power to coerce parents to move, and the effect of s 92 of the Constitution on any order requiring interstate relocation and on the propriety of orders that are not responsive to the parties’ applications, but rather engineer new family arrangements.440 All three judges upheld the appeal, remitting the matter back to Moore J for rehearing. However, the reasoning of the majority (Bryant CJ and Warnick J) differed significantly from that of Kay J. Kay J was not convinced that the court had the power to order a parent to move from a well-established place of residence so as to place a child’s home closer to that of the other parent (or, if such a power did exist, it would be exercisable only in exceptional circumstances).441 Further, Kay J found that the orders actually made in this case (‘The children’s residence is to be established in Sydney’) were vague and unlikely to be enforceable.442 (This is a clear example of why legal drafters should not use the passive voice!) Finally, his Honour held that Moore J had failed to comply with the mandatory obligation, [page 651] where making an order for equal or substantial time, to consider whether such an order was ‘practicable’: s 65DAA. In that regard, his Honour pointed to the failure of the trial judge to address issues such as: how the mother would afford the move; where she would live, given the father’s place of residence was uncertain; and the all-important matter of how the parties were going to communicate to resolve any problems that arose with this rather vague arrangement being imposed by Moore J. Kay J’s views on

how such a case should be handled were apparent from his concluding paragraph: In my view the dilemma in this case is to sculpt orders to meet the realities of the case. Those realities are that the father wants to live in Sydney and the mother wants to live in Geelong and each is free to do so. What needs to be achieved, is an order that in the circumstances maximises the opportunities for the children to develop a relationship with both of their parents. It requires a choice of which parent is to be the primary caregiver, that is, with which parent the children are to live, and then a choice of what opportunities should be provided to the other parent to have the children spend time with them.443

In contrast, Bryant CJ and Warnick J seemed more at ease with the trial judge’s actual decision: We do not say that the true ‘effect’ of her Honour’s orders was a wrong result. However, it was an extreme one and we think required an unusually stringent enquiry.444

Moreover, their Honours were satisfied that the court could make coercive orders that fell outside any proposals of the parties. This includes an injunction to force a parent to move to a particular location, so long as the injunction is limited to the extent necessary to advance the child’s best interests.445 In spite of this, they held that Moore J failed to give proper consideration to alternative proposals and to the practicability of the mother moving to Sydney, and so upheld the appeal.446 9.122 The majority decision in this case therefore tells us that the court must consider all proposals, including ones that are coercive as to either parent’s choice of location; if the child’s interests require it, the court may also consider arrangements not proposed by the parties. Thus, a parent might be restrained from relocating with a child away from the other parent, a parent may be restrained from moving away from the child, and a parent may be asked to move with a relocating parent; [page 652]

this is so even in a case where the parent is prepared to relinquish care of the child if their proposal is not successful, as in Sampson v Hartnett (No 10)447 itself: see 9.121. The possibility of ordering a parent to move with a relocating parent was raised in the most recent High Court case concerning relocation: MRR v GR.448 The parents in this case were from Sydney and they moved to Mt Isa for a two-year contract of employment for the father. They separated while living in Mt Isa and shared care of their child week about. The mother wanted to return with the child to Sydney, but also included proposals based on her remaining in Mt Isa and on the father returning to share care in Sydney. The mother’s objections to living in Mt Isa included that she was isolated from her family, could not find appropriate employment and could only afford to live in a caravan park. The father made it clear that he was not prepared to return to Sydney even if the mother was permitted to relocate with the child. However, Coker FM gave little consideration to the proposal that the father return to Sydney and ordered that the child stay in Mt Isa and that there be equal time parenting. Coker FM also failed to give any detailed consideration to the practicability of the mother living in Mt Isa, and on that ground the appeal was upheld by the High Court: see 8.63 and 9.23. We suggest this decision is reflective of a judicial tendency (at first instance at least) to pay scant regard to the possibility of the ‘left-behind’ parent relocating to be with the child, while readily considering the possibility of restraining the movement of primary carer parents who wish to relocate with the child. In that sense, the principle that the court is not bound by the parents’ proposals has been used much more readily to overcome a carer parent’s refusal to offer as a proposal that they stay to be with the child (as in Sampson) than it has to overcome a left-behind parent’s refusal to consider moving to be with the child (as in MRR v GR). More recent Full Court cases, however, have been critical of this approach. In Adamson & Adamson,449 the Full Court considered the power to make orders that interfere with a parent’s freedom of

movement, and, in particular, orders that require a parent to move. This decision, together with Jurchenko & Foster,450 evidence a shift towards paying more regard to the right of both parents to choose where they live. The Full Court in Adamson (relying on statements in U v U:451 see 9.121) stated that a parent’s freedom of movement should only be restricted to advance the child’s interests ‘where those interests would be so adversely affected as to justify interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects’ (emphasis added).452 The same [page 653] approach, held the court, applies to adopting a proposal other than those advanced by the parties — any modification of the parties’ proposals ‘can only be as far as is necessary to avoid adverse effects upon best interests’.453 Further, the Full Court reiterated that ‘if interference with parental rights’ was required ‘all alternatives, including the [leftbehind parent’s] exercise of [their] right to choose where [they] lived … would need to be considered’ (emphasis added).454 There have been a number of appeals that have succeeded on the basis that the first instance decision maker did not pay sufficient attention to the possibility of a non-primary carer parent moving to be closer to the child in circumstances where a primary carer parent is permitted to relocate with the child.455 The Full Court in Adamson, relying on Sampson (see 9.121), however confirmed that ‘rare’ or ‘extreme’ factors are required before a court will actually order a parent to relocate to continue to be a carer for the child;456 it is arguable that this amounts to a ‘legitimate guideline’ in relation to the exercise of discretion (see 9.24), though this has not been the subject of any judicial comment. This could explain why, while there have been instances where a relocation has been approved on the basis that the other parent could relocate also if

they wished,457 there do not appear to have been any decisions where one parent has been ordered to follow the other. These, and other recent Full Court cases, show an increased sensitivity to the particular disadvantages primary carer parents face in terms of their freedom of movement; in particular, the potential disadvantage these parents (usually mothers) face in court when presented with the question, as in U v U458 (see 9.120), as to what they will do if they are not permitted to relocate. While U v U confirmed that the decision-maker cannot discount an option just because it is not presented by a parent as a proposal, more recent decisions have adopted comments of both Kirby and Gaudron JJ in U v U that highlighted the invidious position a primary carer finds themselves in when having to concede that, if the relocation is not permitted, they will stay to care for the child.459 This can easily present as the ‘best’ alternative and, as we have indicated, lead decision-makers to overlook the reality of the situation. As Kirby J said (in the minority) in U v U (and as endorsed in Jurchenko & Foster):460 Treating the wife’s refusal to abandon her child and her expression of willingness (if necessary) to stay with the child in Australia as an ‘alternative proposal’ requires, in effect, that parent to show ‘good’ or ‘compelling’ reasons

[page 654] to relocate, given that doing so will always make it more difficult (and in some cases virtually impossible) for physical contact between the other parent and the child to be maintained. Such an approach stacks the cards unfairly against the custodial/residence parent…461

Gaudron J noted the potentially gendered nature of this disadvantage: Further, it must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child

runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve. It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.462

9.123 Notwithstanding a degree of judicial awareness of the potential disadvantage primary carers may face in relocation cases, there is arguably still something of an anomaly in the law in respect of the question of the making of ‘coercive’ orders. In both Sampson463 and Adamson,464 the Full Court distinguished orders requiring a parent to relocate from orders restraining a parent’s movement, suggesting a more compelling case needs to be made to warrant making the former type of order. The Full Court justified this position on two grounds. First, there is this statement in Sampson (endorsed in Adamson):465 A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually

[page 655] be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it

might reasonably be inferred that the practicalities of life could be met without detailed inquiry.466

However, this rationale is nothing more than the normal inquiry that must be undertaken when determining what parenting orders best serve the child’s interests. Perhaps when the court says that ‘rare’ or ‘extreme’ circumstances are required to coerce a parent to move, it simply means that it is rarely likely that the arrangements arising out of coercing one parent will be the best in the circumstances. On that interpretation, there should be no distinction between the scrutiny given to the consequences of restraining a parent from relocating away and the consequences of ordering a parent to move. However, in both Sampson and Adamson the Full Court went further in saying that the effect of ordering someone to relocate is more drastic than an order restraining someone’s relocation, because the ‘person being ordered not to move at least has chosen that location at some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom’.467 It is not altogether clear why the court thinks this is invariably the case. Take for example MRR v GR468 (see 9.122) — the mother in that case moved from Sydney to Mt Isa for the father’s job and was initially required to stay there despite the very considerable imposition it placed on her, whereas the father could easily have returned to Sydney but little consideration was given to that possibility. If in fact ‘rare’ or ‘extreme’ circumstances are required before a parent will be ordered to move, then it would seem that primary carer parents wishing to move away (usually mothers) will invariably be disadvantaged, as it will be easier to satisfy a court that it is appropriate to order them to live in a place not of their choosing. The foregoing case law also highlights a fundamental problem with relocation cases in practice. It is not difficult in theory to understand an approach by the courts that contemplates parents

being told where to live, if that is necessary so as not to adversely affect the interests of their children. However, in addition [page 656] to these legal principles being more restrictive of the freedom of movement of parents providing the primary care of children, there is also a practical reason why those same parents may be further disadvantaged. Cases such as U v U469 confirm that, in theory, a parent wishing to move away from their child can be restrained; so a parent exercising contact with their child who wants to move away could be forced to stay to have contact, as contact is the right of the child and generally in their best interests. Carer parents are unlikely to start expensive litigation to force the child’s other parent to stay nearby. This is not because the primary carer is necessarily less concerned about their child than, say, a parent without primary care who starts proceedings to stop the carer parent relocating with the child. The parent without primary care who brings proceedings usually does so for two reasons: first, they think it is best for their child to continue to see them frequently; and second — and crucially — it is very important to them to see their child as much as possible. Conversely, a carer parent may well think it best for the other parent to remain close so they can maintain their relationship with the child, but there will not necessarily be the same personal incentive to start expensive litigation to force the other parent to stay. There is no data on why many children are geographically isolated from one parent; that is, we do not know whether more parents with primary care move or whether it is more often the other parent that moves. It is plainly the case that both events happen, but that only situations that involve moving the child as well come before the court. Thus, it remains the case that, to the extent it is difficult to obtain court consent for a relocation, the

freedom of movement of carer parents will be most harshly affected.470 9.124 As this discussion shows, relocation cases raise very interesting questions about the proper resolution of disputes where the interests of children potentially collide with important interests of parents. In turn, this raises fundamental questions for some about the appropriateness of the paramountcy principle to resolve disputes that arise in a family situation where there is a range of legitimate interests to be considered.471 For these reasons, this topic has become hotly debated in many countries, including Australia.472 There have been suggestions that the [page 657] FLA should be amended to include specific provisions to deal with relocation cases,473 though it seems unlikely this will happen. 9.125 Another question of interest is whether the shared parenting provisions introduced in 2006 have influenced outcomes in relocation cases. In 2008 Parkinson, in an analysis of 58 reported relocation decisions, concluded that since 2006 it has become harder for primary carers to relocate and even harder to persuade a court that an order permitting an international relocation should be made.474 This contrasts with research undertaken as to outcomes prior to the reforms.475

Change of name 9.126 It is not uncommon for parents who do not live together to disagree as to their child’s surname. Names are changed by use and reputation. Registration of a name change, or the use of a deed poll, are simply ways of evidencing a change of name and

there is legislation in the states and territories governing these processes. As a matter of practice, registration of a name change could not be effected without both parents’ consent; however, a unilateral adoption of a different name might nonetheless occur without the other parent’s consent, or indeed knowledge. 9.127 Under the FLA, the question of a child’s surname clearly falls in the category of a major long-term issue: see the definition in s 4(1). Under s 61C(1), and subject to contrary orders of the court, parents each have parental responsibility for decisions about major long-term issues. While it would obviously be desirable for such decisions to be made by parents jointly, or at least by one parent consulting the other and obtaining their agreement, strictly speaking, the powers of a parent exercising parental responsibility under s 61C(1) can be exercised by a parent acting alone, independently of the other parent. For further discussion of this point, see 8.25ff. If there is an order that the parents equally share parental responsibility for major long-term issues, then the issue must be decided jointly (s 65DAC(2)) and the parties [page 658] are required to consult and to make a genuine effort to agree (s 65 DAC(3)). Where parents cannot agree, or where one party has acted unilaterally without the other party’s consent, then an application to court may be made. 9.128 There is no doubt that this is a matter in respect of which the court can and does exercise jurisdiction and that the relevant order would be a parenting order. However, the order itself would not change the child’s name. Rather, the order would permit or restrain the change of name. In Flanagan v Handcock,476 a question arose as to whether the best interests of the child were the paramount consideration when

the order sought in respect of the change of name was an injunction (rather than what was then called a ‘specific issues’ order, which is clearly a parenting order) under s 68B(1). There have been clear judicial statements to the effect that, generally speaking, s 60CA does not apply to the granting of s 68B injunctions.477 The majority of the Full Court in Flanagan v Handcock (Holden and Kay JJ) noted in obiter that, to the extent that s 68B is relied upon for such an order, the paramountcy principle does not apply, though ‘in light of the decision of CDJ v VAJ [see 8.66] …, as the orders sought to be made intimately concerned the welfare of the children, the best interests principle needed to be given careful consideration’.478 Their Honours went on to say, however, that while the injunctive power may have been relied upon, ‘the true nature of the application may well have been governed not by s 68B but by s 65D’.479 Change of name is an aspect of parental responsibility and therefore any dispute on that issue is resolved, opined their Honours, by the making of a parenting order under s 65D, which is governed by s 60CA.480 The father in Flanagan v Handcock had sought to restrain the mother of their twin girls from using any surname for them other than Flanagan. He was unsuccessful at first instance and on appeal. The father sought special leave to appeal to the High Court. Leave was granted, but at the hearing the wife moved a successful motion to have leave revoked. In a joint judgment, Gleeson CJ, Gaudron, Gummow and Callinan JJ said that the original and appellate decisions proceeded on the basis that the best interests of the child was the paramount consideration. As both parties to the appeal agreed with this proposition, the majority considered this was not an appropriate case to test the application and content of the paramountcy principle.481 In a strong dissent, Kirby J made the following points: 1.

There was disagreement in the preceding decisions on this central question and the decision was sufficiently important

that the Commonwealth Attorney-General [page 659]

2.

3. 4.

5.

6.

had intervened. The fact that the parties agreed on the legal position was not relevant to the question of whether s 65E (now s 60CA) applied to the granting of an injunction. As it happened, Kirby J did not see the appellant and respondent as taking precisely the same position on this point. The question of the application of injunctive provisions in respect of the changing of children’s names was a matter of general public significance. It is important that, where a discretion is being exercised, this be done according to law. Superior courts in other jurisdictions have considered this issue in recent years and it was appropriate for there to be superior Australian authority on the point given the uncertainty. The parties had incurred all the costs of bringing the matter to the High Court and should have the benefit of the court deciding the matter. Special leave should be revoked only in exceptional circumstances.

The question was raised with the Full Court again in Reynolds & Sherman.482 This differently constituted Full Court expressed the unanimous, but tentative, obiter view that an order dealing with a child’s name is a parenting order as it falls within s 64B(2)(i). Confirming Flanagan v Handcock, their Honours noted that if this view was not correct, the best interests of the child would still be a very important consideration.483 For further discussion of the application of s 60CA to proceedings relating to children, see 8.64–8.68.484

9.129 What, then, has the Family Court had to say about the principles to be applied in deciding whether a child’s name should be changed? The question of change of name has been litigated before the Family Court on numerous occasions, resulting in an established body of case law on this issue.485 Despite a few early cases apparently recognising some residual paternal rights in this area,486 the approach now taken by the court is for the matter to be determined solely on the basis of the paramount interest of the child487 (though note the comments above regarding the situation where an injunction is sought). In Chapman & Palmer,488 a case that has come to be regarded as authoritative in this area, the Full Court addressed the question of change of a child’s surname. [page 660] The factors that the court said should be taken into account in applications for a change of the surname of a child were summarised as follows: (a) The welfare of the child is the paramount consideration. (b) The short and long-term effects of any change in the child’s surname. (c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control. (d) Any confusion of identity which may arise for the child if his or her name is changed or not changed. (e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage. (f) The effect of frequent or random changes of name.489

9.130 In Skrabl & Leach,490 the court upheld the father’s application restraining the wife from calling the child, about six years of age, any surname other than the husband’s, with Rowlands J attaching particular weight to the close and continuing contact that the child had with her father. It was held that in

these circumstances the welfare of the child would be best promoted if she continued to use the surname of her father, despite any change of name of the mother. It seems that while it may be convenient in some situations to change a child’s surname, mere convenience is not sufficient.491 In Mahoney & McKenzie492 Warnick J accepted the proposal of the wife for the use of a hyphenated surname for the child, although opposed by the husband, the court having found that the child had no particular attachment to or identification with either of her parent’s surnames and that the use of the hyphenated surname would be of benefit to the child. However, in Fooks & McCarthy493 the same judge rejected the use of a hyphenated surname, having found that the child identified with the father’s surname and that retention of that name was clearly in the child’s best interests.494 Director-General, Department of Community Services (NSW) v D495 involved an adoption application by a couple who had been caring for a young child. The mother was a refugee who became pregnant with the child as a result of being raped. The mother’s brother assaulted her on the discovery that she was pregnant and the mother was suffering from depression. She initially consented [page 661] to the adoption, but later sought to retract her consent. While the adoption was not granted, parental responsibility was given to the couple with the mother being able to spend time with the child. The child was already using the couple’s surname and they wanted to formalise the change. Brereton J permitted the change, but only if the mother’s surname was retained as a middle name. Brereton J took account of the disruption to the child of reverting to the mother’s name and the child’s close association with the carer couple. However, balanced against that was the child’s need to

maintain a connection with his mother, her family and the child’s culture. 1.

(2006) 36 Fam LR 422; FLC ¶93-286.

2. 3.

(2006) FLC ¶93-286 at [56]. Ibid at [65], point 5.

4. 5.

(2002) 29 Fam LR 74; FLC ¶93-112. (2006) 36 Fam LR 422; FLC ¶93-286 at [42]–[48].

6. 7.

(2006) FLC ¶93-286 at [64]. Ibid at [65], points 8 and 9.

8. 9.

Ibid at [55]. Ibid at [65], point 11.

10. 11.

(2006) FLC ¶93-296. (2006) 36 Fam LR 422; FLC ¶93-286 at [82].

12. 13.

(2007) 37 Fam LR 461; FLC ¶93-345. See also Sealey v Archer [2008] FamCAFC 142. (2007) FLC ¶93-345 at [62]–[63].

14. 15.

See for example Sayer & Radcliffe [2012] FamCAFC 209 at [49]–[50] and Cox & Pedrana [2013] FamCAFC 48 at [29]-[32]. [2014] FamCAFC 149 at [127].

16. 17.

Chappell v Chappell (2008) 39 Fam LR 627; FLC ¶93-382 at [60]. (2007) 38 Fam LR 467.

18. 19.

Ibid at [182]. See, for example, Elspeth v Peter [2006] FamCA 1385 at [32].

20. 21.

Carlson v Bowden (2008) 40 Fam LR 327 at [175]. (2002) 29 Fam LR 74; FLC ¶93-112.

22. 23.

See, for example, Cassidy v Cassidy [2009] FamCAFC 125. See Pavli & Beffa [2013] FamCA 144 at [17]–[29]; Carlson v Bowden (2008) 40 Fam LR 327 at [178]–[187].

24. 25.

Boyce & Boyce [2015] FamCAFC 60 at [22]. Damiani v Damiani (No 2) [2009] FamCAFC 215 at [157]. See, for example, Freeman v Rouse [2007] FMCAfam 752; BZ v DAK [2007] FMCAfam 596.

26.

27.

Marvel v Marvel (2010) 43 Fam LR 348 at [103]. See, for example, OS v PS (2007) 38 Fam LR 467 at [14]; Carlson v Bowden (2008) 40 Fam LR 327 at [163]ff; Chappell v Chappell (2008) 39 Fam LR 627; FLC ¶93-382 at [75]; Terry v Keeler [2008] FMCAfam 300 at [57]. [2014] FamCAFC 236.

28. 29.

Ibid at [69]. See, for example, Carlson v Bowden (2008) 40 Fam LR 327, discussed at 9.60.

30.

Chappell v Chappell (2008) 39 Fam LR 627; FLC ¶93-382 at [75].

31.

[2013] FamCA 144.

32. 33.

Austin v Austin (1865) 34 Beav 257; 55 ER 634 at 636–7. Allen v Allen [1948] 2 All ER 413; Storie v Storie (1945) 80 CLR 597; Lovell v Lovell (1950) 81 CLR 513.

34. 35.

See, for example, the High Court decision of Kades v Kades (1961) 35 ALJR 251. See, for example, Harnett v Harnett [1954] VLR 533 at 537, where Barry J of the Victorian Supreme Court quoted extracts from Bowlby’s Child Care and the Growth of Love (published in 1953, and based on Bowlby’s report to the World Health Organization in 1951 entitled Maternal Care and Mental Health).

36. 37.

See, for example, Epperson v Dampney (1976) 10 ALR 227 at 231 and 241. See, for example, Mathieson & Mathieson (1980) 6 Fam LR 116; (1977) FLC ¶90-230.

38.

Sanders & Sanders (1976) 1 Fam LR 11,433; FLC ¶90-078; Marriage of Kress (1976) 2 Fam LR 11,330; FLC ¶90-126. (1979) 144 CLR 513.

39. 40. 41.

42. 43.

See, for example, the remarks of the Full Court in Pavey & Pavey (1976) 1 Fam LR 11,358; FLC ¶90-051; Maxwell & Maxwell (1976) 1 Fam LN No 27. See S Bordow, ‘Defended Custody Cases in the Family Court of Australia: Factors Influencing the Outcome’ (1994) 8 Australian Journal of Family Law 252 at 254–6; Family Court of Australia, Submission of the Family Court of Australia (Part B Statistical Analysis and Part C Full Court Analysis) to the Standing Committee on Family and Community Affairs Inquiry into Joint Custody Arrangements in the Event of Family Separation, 2003, [2.3]. For critical analysis, see A Hasche, ‘Sex Discrimination in Child Custody Determinations’ (1989) 3 Australian Journal of Family Law 218. However, for an analysis that suggests male nurturing has been viewed sceptically by Australian Family Court judges, see L Moloney, ‘Do Fathers “Win” or do Mothers “Lose”? A Preliminary Analysis of a Random Sample of Parenting Judgments in the Family Court of Australia’, Seminar Paper, Australian Institute of Family Studies, 2000.

44. 45.

(1995) 19 Fam LR 183; FLC ¶92-610. (1995) 19 Fam LR 183 at 194. Cf Sheridan & Sheridan (1994) 18 Fam LR 415; FLC ¶92-517.

46. 47.

(1996) 19 Fam LR 714; FLC ¶92-658. (1996) FLC ¶92-660.

48. 49.

(1998) 23 Fam LR 53; FLC ¶92-807. (1998) 23 Fam LR 53 at 66.

50. 51.

Ibid at 69. Ibid at 69–70.

52.

(2009) 41 Fam LR 483; FLC ¶93-405 at [124]. See also McCall v Clark (No 3) [2010] FMCAfam 1443 at [70], where there is discussion of the evidence led as to attachment theory by the writer of the family report in the rehearing of this case. J Bowlby, Attachment. Attachment and Loss: Vol 1, The Hogarth Press, London, 1969;

53.

MDS Ainsworth et al, Patterns of Attachment: A Psychological Study of the Strange Situation, NJ Erlbaum, Hillsdale, 1978; MS Mahler, F Pine and A Bergman, The Psychological Birth of the Human Infant, Basic Books Inc, New York, 1975, pp 39–51. 54.

55. 56.

57. 58. 59.

60.

61.

62. 63. 64.

I Bretherton and K A Munholland, ‘Internal Working Models in Attachment Relationships, A Construct Revisited’ in J Cassidy and PR Shaver, Handbook of Attachment: Theory, Research and Clinical Applications, The Guildford Press, New York, 1999; B Groves and M Augustyn, ‘Identification, Assessment, and Intervention for Traumatized Children within a Pediatric Setting’ in J Osofsky (ed), Young Children and Trauma, The Guilford Press, New York, 2004. A Schore and J McIntosh, ‘Family Law and the Neuroscience of Attachment, Part 1’ (2011) 49 Family Court Review 501. J Bowlby, Attachment. Attachment and Loss: Vol I, The Hogarth Press, London, 1969; MDS Ainsworth et al, Patterns of Attachment: A Psychological Study of the Strange Situation, NJ Erlbaum, Hillsdale, 1978; J Bowlby, Separation Anxiety and Anger, Attachment and Loss: Vol II, The Hogarth Press and the Institute of Psycho-analysis, London, 1973; J Bowlby, Loss, Attachment and Loss: Vol III, Basic Books, New York, 1980. M Rutter, Maternal Deprivation Reassessed, Penguin Books Inc, Harmondsworth, 1972, p 51. D Winnicott, The Family and Individual Development, Tavistock Publications, London, 1965. M Dozier, K Chase-Stovall and K Albus, ‘Attachment and Psychopathology’ in J Cassidy and PR Shaver, Adulthood. Handbook of Attachment, The Guildford Press, New York, 1999; P Fonagy, Attachment Theory and Psychoanalysis, Other Press, New York, 2001, pp 19–46; D Howe, Child Abuse and Neglect, Attachment, Development and Intervention, Palgrave Macmillan, Houndmills, 2005, pp 82–3, 104, 129–30, 150–1. BD Perry et al, ‘Childhood Trauma, The Neurobiology of Adaption, and “Usedependant” Development of the Brain: How “States” Become “Traits”’ (1995) 16(4) Infant Mental Health Journal 271; AN Schore, ‘The Effects of Early Relational Trauma on Right Brain Development, Affect Regulation, and Infant Mental Health’ (2001) 22(1) Infant Mental Health Journal 201. RE Anda et al, ‘The Enduring Effects of Abuse and Related Adverse Experiences in Childhood: A Convergence of Evidence from Neurobiology and Epidemiology (2006) 56 European Archives of Psychiatry and Clinical Neuroscience 174. A Schore and J McIntosh, ‘Family Law and the Neuroscience of Attachment, Part 1’ (2011) 49 Family Court Review 501. ibid. J Cashmore and P Parkinson, ‘Parenting Arrangements for Young Children: Messages from Research’ (2011) 25(3) Australian Journal of Family Law 236; B Smyth, J McIntosh and M Kelaher, ‘Research into Parenting Arrangements for Young Children; Comment on Cashmore and Parkinson’ (2011) 25(3) Australian Journal of Family Law 258; P Parkinson and J Cashmore, ‘Parenting Arrangements for Young Children — A Reply to Smyth, McIntosh and Kelaher’ (2011) 25(3) Australian Journal of Family Law 284.

65.

B Fehlberg et al, ‘Legislating for Shared Time Parenting after Separation: A Research Review’ (2011) 25 International Journal of Law, Policy and the Family 320.

66. 67.

Ibid. Ibid at 332–3.

68. 69.

Ibid at 332. Ibid. There has been some debate about what the research in relation to very young children tells us: see J McIntosh et al, Post-separation Parenting Arrangements and Developmental Outcomes for Infants and Children. Collected Reports, Family Transitions, Victoria, 2010; J Cashmore and P Parkinson, ‘Parenting Arrangements for Young Children: Messages from Research’ (2011) 25(3) Australian Journal of Family Law 236; B Smyth, J McIntosh and M Kelaher, ‘Research into Parenting Arrangements for Young Children; Comment on Cashmore and Parkinson’ (2011) 25(3) Australian Journal of Family Law 258; P Parkinson and J Cashmore, ‘Parenting Arrangements for Young Children — A Reply to Smyth, McIntosh and Kelaher’ (2011) 25(3) Australian Journal of Family Law 284.

70.

B Fehlberg et al, ‘Legislating for Shared Time Parenting after Separation: A Research Review’ (2011) 25 International Journal of Law, Policy and the Family 320 at 328–9. Ibid at 330.

71. 72. 73.

See P Parkinson, ‘The Family Law Reform Pendulum’ (2009) 23(3) Australian Journal of Family Law 155 at 157. For an interesting perspective on what might drive family law reform in Australia, see R Graycar, ‘Family Law Reform in Australia, or Frozen Chooks Revisited Again?’ (2012) 13(1) Theoretical Inquiries in Law 241.

74. 75.

Available at www.familycourt.gov.au (accessed 4 October 2015). For example, see the comment of Strickland J in Mazurka v Mazurka [2011] FamCAFC 68 at [35]. However, this still occurs on occasion: see, for example, Jackson & Macek [2015] FamCAFC 114

76.

77.

See, for example, J Cashmore and P Parkinson, ‘Parenting Arrangements for Young Children: Messages from Research’ (2011) 25(3) Australian Journal of Family Law 236; B Smyth, J McIntosh and M Kelaher, ‘Research into Parenting Arrangements for Young Children; Comment on Cashmore and Parkinson’ (2011) 25(3) Australian Journal of Family Law 258; P Parkinson and J Cashmore, ‘Parenting Arrangements for Young Children — A Reply to Smyth, McIntosh and Kelaher’ (2011) 25(3) Australian Journal of Family Law 284. Aytugrul v The Queen [2012] HCA 15 at [20].

78. 79.

[2012] FamCAFC 69. Ibid at [68].

80. 81.

[2010] FamCAFC 263. Ibid at [103].

82. 83.

Ibid at [102]–[113]. [2012] FamCAFC 69.

84. 85.

Ibid at [75]. Ibid at [108].

86. 87.

Ibid at [117]. See, for example, Chappell v Chappell (2008) 39 Fam LR 627; FLC ¶93-382 at [13]; Mills v Watson (2008) 39 Fam LR 52 at [185].

88. 89.

[2014] FamCAFC 57. Ibid at [48], referring to Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269–70, citing Scarman LJ in R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309.

90. 91.

[2014] FamCAFC 42 at [79]ff. See also Nada & Nettle [2014] FamCAFC 123; Orpheus & Orpheus [2014] FamCAFC 70. (2009) 41 Fam LR 483; FLC ¶93-405.

92. 93.

Ibid at [89]. For another example, see Hamish & Brighton [2014] FamCAFC 242. (2007) FLC ¶93-349.

94. 95.

[2011] FamCA 259 at [29]. Note however that it can be inferred from the reasons that this subsection has been addressed, even if it is not specifically mentioned: Hamish & Brighton [2014] FamCAFC 242; SCVG & KLD (2014) FLC ¶93-582; Orpheus & Orpheus [2014] FamCAFC 70; Nada & Nettle [2014] FamCAFC 123.

96. 97.

(2010) 240 CLR 461. Gronow v Gronow (1980) 144 CLR 513.

98.

For further discussion on this point, see R Chisholm, ‘Making it Work: Family Law Amendment (Shared Parental Responsibility) Act 2006’ (2007) 21 Australian Journal of Family Law 143; P Parkinson, ‘The Values of Parliament and the Best Interests of Children — A Response to Professor Chisholm’ (2007) 21 Australian Journal of Family Law 213; R Chisholm, ‘A Brief Reply to Professor Parkinson’ (2007) 21 Australian Journal of Family Law 229. [1986] HCA 17; (1986) 161 CLR 513.

99.

100. [2014] FamCAFC 92. 101. Ibid at [42]. 102. (1979) 6 Fam LR 570; FLC ¶90-725. 103. See, for example, Beazley & Andreopolis [2009] FamCA 567. Notably, this case concerned property and parenting proceedings, and the discussion of the parties’ credit was considered at the outset of the latter part of the judgment dealing with the parenting dispute. This is not to say that issues of credit do not arise in property proceedings; they do, and can also be influential: see, for example, Mims & Green & Green [2008] FamCAFC 13. 104. [2014] FamCAFC 232 at [89]–[90]. 105. [2012] FamCA 32. 106. Ibid at [165]–[169]. 107. (2006) 37 Fam LR 32. 108. (2006) FLC ¶93-313 at [33]–[34]. 109. Note that the objects and principles are simply aids to assisting with the interpretation of the substantive provisions (Maldera v Orbel [2014] FamCAFC 135

(see further, 8.132), and so the addition of substantive provisions was an important step. 110. Marsden v Winch (No 3) [2007] FamCA 1364 at [77]–[78]; Champness v Hanson (2009) FLC ¶93-407 at [101]–[102]; Aldridge v Keaton (2009) FLC ¶93-421; Slater v Light (2011) 45 Fam LR 41. 111. Marsden v Winch (No 3) [2007] FamCA 1364 at [78]. 112. See further, L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2)(a): A New Era?’ (2014) 28 Australian Journal of Family Law 233. 113. [2009] FamCAFC 76. 114. Though note the comments of May and Thackray JJ on this point at [79]–[81]. See also Potts v Bimms [2007] FamCA 394, discussed at 9.61. 115. See, for example, the comments of Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at [26]; Kay J in Godfrey v Sanders (2007) 208 FLR 287 at [36] (agreeing with Dessau J in M & S (2007) 37 Fam LR 32; FLC ¶93-313); and Bennett J in G v C [2006] FamCA 994. 116. (2009) 41 Fam LR 483; FLC ¶93-405. 117. (2009) FLC ¶93-405 at [118]. 118. Ibid. 119. Ibid at [121]. 120. (2007) 37 Fam LR 518. 121. [2006] FamCA 994. 122. (2007) 37 Fam LR 518 at [26]. 123. P v P [2006] FMCAfam 518 at [256]. See also the discussion of this point in R Chisholm, ‘The Meaning of “Meaningful”: Exploring a Key Term in the Family Law Act Amendments of 2006’ (2008) 22 Australian Journal of Family Law 175. 124. (2009) 41 Fam LR 483; FLC ¶93-405 at [122] (original emphasis). 125. [2009] FamCAFC 92 at [117]. For a detailed consideration of the meaning of the word ‘meaningful’, see R Chisholm, ‘The Meaning of “Meaningful”: Exploring a Key Term in the Family Law Act Amendments of 2006’ (2008) 22 Australian Journal of Family Law 175. 126. For a discussion, see R Chisholm, ibid. 127. Ibid. 128. [2009] FamCAFC 76. 129. There are of course other ways a child might be exposed to the possibility of harm, aside from family violence; for example, from the intended place of residence of a parent. 130. For criticism of the use of the term ‘family violence’, principally for its ideological overtones, see J Behrens, ‘Ending the Silence, But … Family Violence under the Family Law Reform Act 1995’ (1996) 10 Australian Journal of Family Law 35 at 37–9. 131. For a discussion of the previous version of the section, see L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [8.23]–[8.25].

132. Though this subsection is not worded to limit its application in this way, it is routinely applied only in relation to persons other than the children who are the subjects of the proceedings: see L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era?’, (2014) 28 Australian Journal of Family Law 233 at 255ff. 133. (1988) 12 Fam LR 606; FLC ¶91-979. 134. See the case of R v R (1988) 23 Fam LR 456; FLC ¶92-820, where the Full Court supported the more general application of the ‘unacceptable risk’ test in non-abuse cases, though specifically in relation to children; and J Fogarty, ‘Unacceptable Risk — A Return to Basics’ (2006) 20 Australian Journal of Family Law 249. 135. See T Altobelli, ‘Family Violence and the Family Law Reform Act’ (1996) 11 Australian Family Lawyer 9. 136. Australian Law Reform Commission (ALRC), Report No 69, Part I, Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, Ch 9 and Recommendations 9.1–9.3. 137. (1976) 1 Fam LR 11,576; FLC ¶90-077. 138. See also Chandler & Chandler (1981) 6 Fam LR 736; FLC ¶91-008. For discussion of these and other examples, see S Berns, ‘Living Under the Shadow of Rousseau: The Role of Gender Ideologies in Custody and Access Decisions’ (1991) 10 University of Tasmania Law Review 233. 139. (1994) 18 Fam LR 126; FLC ¶92-492. 140. (1994) FLC ¶92-492 at [16]. 141. (1994) FLC ¶92-497. 142. (1995) 18 Fam LR 426; FLC ¶92-580. 143. (1994) 18 Fam LR 255; FLC ¶92-515. 144. (1994) 18 Fam LR 255 at 261. 145. (1998) 22 Fam LR 756; FLC ¶92-800. 146. (1999) 24 Fam LR 325; FLC ¶92-837. 147. (2000) FLC ¶93-006. 148. (2001) 28 Fam LR 342; FLC ¶93-086. 149. (2003) 31 Fam LR 257; FLC ¶93-172. 150. (2007) 37 Fam LR 317; FLC ¶93-320. 151. R Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112 at 112. See also H Rhoades et al, The Family Law Reform Act: Can Changing Legislation Change Legal Culture, Legal Practice and Community Expectations? Interim Report, University of Sydney and Family Court of Australia, Melbourne, 1999; H Rhoades et al, The Family Law Reform Act 1995: The First Three Years, Family Court of Australia and University of Sydney, Melbourne, 2001; J Dewar et al, Parenting, Planning and Partnership: The Impact of the New Part VII of the Family Law Act 1975, Family Law Research Unit Working Paper No 3, Brisbane, 1999. 152. R Kaspiew, ‘Violence in Contested Children’s Cases: An Empirical Exploration’ (2005) 19 Australian Journal of Family Law 112 at 112.

See also M Kaye, J Stubbs and J Tolmie, ‘Domestic Violence and Child Contact 153. Arrangements’ (2003) 17 Australian Journal of Family Law 93; A Shea Hart, ‘Children Exposed to Domestic Violence: Undifferentiated Needs in Australian Family Law’ (2004) 18 Australian Journal of Family Law 170; S Armstrong, ‘“We Told You So …” Women’s Legal Groups and the Family Law Reform Act 1995’ (2001) 15 Australian Journal of Family Law 129. 154. B Fehlberg et al, ‘Review of Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005’ (2005) 19 Australian Journal of Family Law 79. See also Z Rathus, ‘Shifting the Gaze: Will Past Violence be Silenced by a Further Shift of the Gaze to the Future under the New Family Law System?’ (2007) 21 Australian Journal of Family Law 87. 155. (2008) 39 Fam LR 52. 156. Ibid at [15]. 157. Ibid at [283]–[286]. 158. Ibid at [300]. 159. Ibid at [283]. 160. Ibid at [300]. 161. [1999] 2 FLR 321. 162. Ibid at 333. 163. On the extent to which allegations of violence in court are not well documented, see P Parkinson, J Cashmore and A Webster, ‘The Views of Family Lawyers on Apprehended Violence Orders After Parental Separation’ (2010) 24 Australian Journal of Family Law 313. 164. Justice S Strickland and K Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (2014) Australian Journal of Family Law 47 at 81. 165. See the discussion of this in L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era?’ (2014) 28 Australian Journal of Family Law 233 at 257ff. 166. Ibid at 261. 167. [1985] 3 All ER 402. 168. See Secretary, Department of Health & Community Services v JWB & SMB (1992) 15 Fam LR 392; FLC ¶92-293; United Nations Convention on the Rights of the Child 1989, esp Art 12(1). 169. (1984) 9 Fam LR 440; FLC ¶91-531. 170. (1985) FLC ¶91-642. 171. (1995) 18 Fam LR 788; FLC ¶92-598. 172. (1995) 18 Fam LR 788 at 800. 173. Ibid at 797. 174. Ibid at 825. 175. (1997) 22 Fam LR 219; FLC ¶92-768. 176. (2000) 25 Fam LR 712 at 723; FLC ¶93-000. See also, for example, Van Wijk & Jetson (2005) FLC ¶93-240 and Barningham v Barningham [2011] FamCAFC 12, where

successful appeals followed findings that the reasons of the trial judges did not sufficiently explain why so little weight had been placed on the children’s wishes. 177. (2002) 29 Fam LR 20; FLC ¶93-101. 178. See Gillick v West Norfolk & Wisbech Area Health Authority [1985] 3 All ER 402. 179. [2015] FamCA 727. 180. Roda & Roda [2014] FamCA 943. 181. Ibid at [2]. It is unclear what happened, as McClelland J in the later decision (Roda & Roda (No 2) [2015] FamCA 727) recites a different outcome in the 2014 case to that which appears in the report. His Honour suggests the boy returned as a result of the original order, but the report of the first case indicates permission was granted to stay until June 2015. 182. Roda & Roda (No 2) [2015] FamCA 727. 183. Ibid at [21]. 184. Marriage of Joannou (1985) FLC ¶91-642 at 80,183. 185. See, for example, ZN v YH & Child Representative (2002) 29 Fam LR 20; FLC ¶93-101, in particular, the discussion of this practice at (2002) FLC ¶93-101 at [104]–[113]. 186. See, for example, M Fernando, ‘Conversations between Judges and Children: An Argument in Favour of Judicial Conferences in Contested Children’s Matters’ (2009) 23 Australian Journal of Family Law 48. On this topic, see also J Cashmore and P Parkinson, ‘Children’s Participation in Family Law Disputes: Are Children Happier if They Have a Say?’ (2009) 82 Family Matters 15; J Cashmore and P Parkinson, ‘Children’s and Parents’ Perceptions on Children’s Participation in Decision Making After Parental Separation and Divorce’ (2008) 46 Family Court Review 9; P Parkinson and J Cashmore, ‘Judicial Conversations with Children in Parenting Disputes: The Views of Australian Judges’ (2007) 21 International Journal of Law, Policy and the Family 160. 187. See M Fernando, ‘What Do Australian Judges Think about Meeting with Children?’ (2012) 26 Australian Journal of Family Law 1. 188. For discussion of the practical relevance of this in relation to outcomes of contested proceedings, see S Bordow, ‘Defended Custody Cases in the Family Court of Australia: Factors Influencing the Outcome’ (1994) 8 Australian Journal of Family Law 252 at 258. For a pre-2006 analysis of factors affecting outcomes, see Family Court of Australia, Submission of the Family Court of Australia (Part B Statistical Analysis and Part C Full Court Analysis) to the Standing Committee on Family and Community Affairs Inquiry into Joint Custody Arrangements in the Event of Family Separation, 2003, [2.3]. 189. See, for example, J Goldstein, A Freud and A Solnit, Beyond the Best Interests of the Child, Free Press, New York, 1973. 190. (1987) 11 Fam LR 664; FLC ¶91-813. 191. (1987) 11 Fam LR 664 at 666. 192. For example, Power & Power (1988) 12 Fam LR 97; FLC ¶91-911. 193. (1985) 10 Fam LR 357; FLC ¶91-636. 194. (1976) FLC ¶90-104.

195. See the discussion of the background to the House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, December 2003 in R Chisholm, ‘The Meaning of “Meaningful”: Exploring a Key Term in the Family Law Act Amendments of 2006’ (2008) 22 Australian Journal of Family Law 175. 196. This extends to half-siblings: Oakley v Cooper [2009] FamCAFC 133. 197. (1973) 2 ALR 19. 198. Ibid at 29. 199. Marriage of Heidt (1976) 1 Fam LR 11,576; FLC ¶90-077; Dyer & Dyer (1977) FLC ¶90299; Mathieson & Mathieson (1980) 6 Fam LR 116; (1977) FLC ¶90-230; Fitzgerald & Robinson (1978) FLC ¶90-401. 200. (1977) 3 Fam LR 11,276; FLC ¶90-246. 201. (1978) 3 Fam LN No 78; FLC ¶90-401. 202. (1978) FLC ¶90-401 at 77,064. 203. [2012] FamCA 245. 204. (1976) 2 Fam LR 11,558; FLC ¶90-140. 205. (1976) 2 Fam LR 11,558 at 11,578. 206. Marriage of Heidt (1976) 1 Fam LR 11,576; FLC ¶90-077; Mathieson & Mathieson (1980) 6 Fam LR 116; (1977) FLC ¶90-230. 207. (1994) 19 Fam LR 165; (1995) FLC ¶92-599. 208. (1994) 19 Fam LR 165 at 168. 209. See, however, the discussion at 9.20 of recent cases calling into question judicial reliance on research, where it is not tendered as evidence. 210. (1998) 23 Fam LR 53; FLC ¶92-807. 211. (1998) 23 Fam LR 53 at 70. 212. Ibid. 213. [1970] AC 668. 214. Ibid at 715. 215. (1977) FLC ¶90-235. 216. Ibid at 76,261. 217. Marriage of Obrenovic & McCauley (1985) FLC ¶91-655; Marriage of E & E (No 2) (1979) 5 Fam LR 244; FLC ¶90-645; Marriage of Drew; Lovett (Interveners) (1993) 16 Fam LR 536 at 538 per Treyvaud J. 218. (1993) 16 Fam LR 970; FLC ¶92-415. 219. (1993) 17 Fam LR 1 at 15–16; FLC ¶92-421. 220. (1993) 17 Fam LR 1 at 15, 18. For more recent decisions, see KN & Child Representatives v NN & JN (2006) 35 Fam LR 518; FLC ¶93-284; Director-General, Department of Community Services (NSW) v D (2007) 37 Fam LR 595. 221. See the discussion of the amendments by Altobelli FM in Connor v Bourke [2008] FMCAfam 69.

222. (2007) 38 Fam LR 671. 223. Dennett & Norman [2007] FamCA 57. 224. Ibid at [110]–[119]. See also Kay v Jasper [2007] FamCA 1646 at [73] per O’Reilly J; Sacrinity v Wolodzko [2010] FamCA 1258 at [54] per Ryan J. 225. [2001] FamCA 832. 226. Ibid at [56]. 227. [2007] FamCA 394. 228. (2009) 41 Fam LR 418; FLC ¶93-404. See also Carlson v Bowden (2008) 40 Fam LR 327. 229. Ibid at [8]. See also Mulvany v Lane (2009) 41 Fam LR 418; FLC ¶93-404, discussed at 9.26. 230. (2009) 42 Fam LR 369; FLC ¶93-421. See also Donnell v Dovey [2010] FamCAFC 15 at [121]; Beasley & Jeffreys [2011] FMCAfam 713 at [145]; Valentine & Lacerra [2013] FamCAFC 53. 231. [2013] FamCAFC 64. 232. Ibid at [27]. 233. For a discussion of this issue, see R Carroll and C Croucher, ‘Maldera & Orbel: Choosing Between a Parent and a Grandparent — What can Tip the Scales?’ (2015) 29 Australian Journal of Family Law 157. 234. (2008) 40 Fam LR 327. 235. Ibid at [121]. 236. (1999) 25 Fam LR 352; FLC ¶92-863. 237. (1999) 25 Fam LR 352 at 363. 238. (2002) 28 Fam LR 579; FLC ¶93-096. 239. (2002) 28 Fam LR 579 at 651. 240. F Kelly, ‘Redefining Parenthood: Gay and Lesbian Families in the Family Court — The Case of Re Patrick’ (2002) 16 Australian Journal of Family Law 204. 241. [2015] FCCA 2382. See also the decision in Halifax & Fabian [2010] FamCA 1212, where orders were made such that the biological children of a separated lesbian couple were effectively ‘divided’ according to each child’s biological connection to one of the mothers. 242. [2015] FCCA 2382 at [88]. 243. See Marriage of N (1977) FLC ¶90-208; Lonard & Lonard (1976) 2 Fam LR 11,116; Barnett v Barnett (1972) 21 FLR 335; Gibson & Gibson (1981) FLC ¶91-049. 244. Fields v Bower [2012] FamCA 189 at [122]. 245. (1972) 21 FLR 335 at 343. 246. (1983) 8 Fam LR 1029; FLC ¶91-337. 247. (1983) 8 Fam LR 1029 at 1035. 248. (1983) 8 Fam LR 1029; FLC ¶91-337. 249. (1981) 7 Fam LR 170; FLC ¶91-023. 250. See also Reihana & Reihana (1980) 6 Fam LR 134; Torie & Torie (1981) 7 Fam LR 370;

FLC ¶91-046. 251. Cf H v R [2006] FamCA 878, where the mother disappeared with the children following a relationship in which it was found she suffered severe physical abuse from the father. The father was not permitted contact. 252. (1976) 2 Fam LR 11,330; FLC ¶90-126. 253. (1976) 2 Fam LR 11,330 at 11,339. 254. (1976) 5 Fam LR 796; FLC ¶90-024. 255. (1976) 5 Fam LR 796 at 797. 256. See also Barker v Barker (1976) FLC ¶90-068; Jarman & Lloyd (1982) 8 Fam LR 878. 257. (2005) 35 Fam LR 439; FLC ¶93-248. 258. Marriage of Spry (1977) 3 Fam LR 11,330; FLC ¶90-271; Schmidt & Schmidt (1979) 5 Fam LR 421; FLC ¶90-685; 28 ALR 84; Jarman & Lloyd (1982) 8 Fam LR 878; Shepherd & Shepherd (1979) FLC ¶90-729; L & L (1983) FLC ¶91-353; Marriage of Doyle (1992) 15 Fam LR 274; FLC ¶92-286. 259. (1979) 5 Fam LR 421; FLC ¶90-685; 28 ALR 84. 260. (1983) FLC ¶91-353. 261. (1992) 15 Fam LR 274; FLC ¶92-286. 262. For analysis, see M Otlowski, ‘Doyle and Doyle: Family Court Awards Custody to Homosexual Father’ (1992) 11 University of Tasmania Law Review 261. 263. (1992) 15 Fam LR 274 at 277. 264. (1977) 3 Fam LR 11,330; FLC ¶90-271. 265. E Goodman, ‘Homosexuality of a Parent: A New Issue in Custody Disputes’ (1979) 4 Melbourne University Law Review 305 at 315. 266. J Millbank, ‘If Australian Law Opened its Eyes to Lesbian and Gay Families, What Would it See?’ (1998) 12 Australian Journal of Family Law 99 at 123–4. 267. (2005) 35 Fam LR 439; FLC ¶93-248. 268. (2005) FLC ¶93-248 at [44]. 269. See D v N [2002] FMCAfam 66, where it is mentioned that the mother believed the father to be bisexual and that she clearly felt that was an issue. Bryant CFM made little of this except to note that it pointed to the mother being homophobic and raised a slight concern this might impact on the mother’s willingness to facilitate contact with the father. See also Craven v Crawford-Craven [2008] FamCAFC 93. 270. See, for example, the discussion of continued breastfeeding by a mother who had been tattooed and was therefore at risk of having contracted HIV (though there was no evidence at the time of trial that she had): Jackson & Macek [2015] FamCAFC 114. 271. (2005) 35 Fam LR 439; FLC ¶93-248 at [101]. 272. Ibid at [119]. See J v W (1999) 25 Fam LR 299; FLC ¶92-858 for a case where a child was left in the care of her HIV-positive father pending trial. 273. (1989) 13 Fam LR 299; FLC ¶92-043. 274. See, for example, Beard v McCarthy [2009] FamCA 737.

For analysis of some empirical evidence on the effects of certain religious beliefs 275. and practices on children, see F Bates, ‘Religious Belief, Reasonableness and Child Custody’ (1981) 131 New Law Journal 1139. 276. See Bartsch & Redman (No 2) [2014] FamCAFC 214 at [11]; at trial the mother was given parental responsibility in respect of religion precisely so that she was not required to consult the father on that matter. 277. (1979) 5 Fam LR 281; FLC ¶90-659. 278. Firth & Firth (1988) 12 Fam LR 547; FLC ¶91-971. 279. (1994) 19 Fam LR 662; (1995) FLC ¶92-639. See also Re Lynette (1999) 25 Fam LR 352; FLC ¶92-863. 280. For example, Mauger v Mauger (1966) 7 FLR 484; Mauger v Mauger (No 1) (1966) 10 FLR 285. 281. For example, Plows & Plows (No 2) (1979) 5 Fam LR 590; FLC ¶90-712. 282. (1981) 7 Fam LR 889; FLC ¶91-111. 283. (1981) 7 Fam LR 889 at 899. 284. See, for example, Beard v McCarthy [2009] FamCA 737; Ramero v Chavez [2011] FamCA 387. 285. [2013] FMCAfam 6. 286. Ibid at [177]. 287. [2006] FamCA 1385. 288. Peter v Elspeth [2009] FamCA 551. 289. (2003) 30 Fam LR 264; FLC ¶93-162. 290. Goudge & Goudge (1984) 9 Fam LR 500; FLC ¶91-534; R & R (1984) 9 Fam LR 1078; (1985) FLC ¶91-615. 291. Ibid. 292. Report No 31, AGPS, Canberra, 1986. 293. (1995) 19 Fam LR 594; FLC ¶92-636. 294. (1989) 15 Fam LR 7; (1991) FLC ¶92-238. 295. (1995) 19 Fam LR 594 at 623. 296. Ibid. 297. Human Rights and Equal Opportunity Commission (HREOC), Bringing Them Home, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, HREOC, Canberra, April 1997. 298. Family Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation, AGPS, Canberra, 2001; Family Law Council, Recognition of Traditional Aboriginal and Torres Strait Islander Child-rearing Practices, Response to Recommendation 22: Pathways Report, Out of the Maze, AGPS, Canberra, 2004. 299. (2010) 42 Fam LR 559; FLC ¶93-428. 300. (2007) 36 Fam LR 275; FLC ¶93-320. 301. (2007) 38 Fam LR 671. 302. (2007) 37 Fam LR 518.

303. (2007) 38 Fam LR 671 at [60]–[61]. 304. Ibid at [72], [79]. 305. [1998] FamCA 239 at [29]–[30]. 306. (2009) FLC ¶93-418. 307. (1995) 19 Fam LR 594; FLC ¶92-636. 308. (2009) FLC ¶93-418 at [121]. 309. (2010) 42 Fam LR 559; FLC ¶93-428 at [228]. 310. (2009) FLC ¶93-418 at [296]–[304]. 311. (1997) 21 Fam LR 486; FLC ¶92-741. 312. Available at www.ag.gov.au (accessed 30 May 2012). 313. At [6]–[7]. 314. (1976) 2 Fam LR 11,322; FLC ¶90-130. 315. (1976) 1 Fam LR 11,531; FLC ¶90-234. 316. (1983) FLC ¶91-330. 317. Ibid at 78,252. 318. (1991) Fam LR 173; (1992) FLC ¶92-271. 319. Note also the UK case of Re KD (a Minor) (Ward: Termination of Access) [1988] 1 AC 806, with which the Full Court expressly agreed. 320. (1995) 19 Fam LR 837. 321. Ibid at 853. 322. Re B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 at 728; FLC ¶92-755. 323. J Dewar and S Parker, ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 Australian Journal of Family Law 96; H Rhoades, R Graycar and M Harrison, The Family Law Reform Act 1995: The First Three Years, Family Court of Australia, Canberra, 2000. 324. Summerby v Cadogen [2011] FamCAFC 205. 325. Ponting v Ponting [2011] FamCAFC 88. 326. Rowell v Keogh [2011] FamCAFC 74. 327. Craig & Hall [2012] FamCA 88. This decision is interesting to read as one can see the reluctance of the judge in refusing contact notwithstanding the father’s appalling behaviour (eg at [19]); in part, contact is refused on the basis that it is best for the father, as contact would only worsen the children’s view of him (at [41]). 328. Dennison v Wang [2010] FamCAFC 182. 329. (1979) 5 Fam LR 244; FLC ¶90-645. 330. (1979) 5 Fam LR 244 at 274. 331. (1990) 102 FLR 108; (1991) FLC ¶92-201. 332. (1995) FLC ¶92-570. 333. More recently, see Crestin v Crestin (2008) 39 Fam LR 420; FLC ¶93-368 (though in this case the matter was resolved by consent and it appears the purpose of the paternal grandparents in seeking the order was to re-establish their son’s

relationship with the child). 334. For discussion of the rights of grandparents under the legislation, see J Pollard and P Lewis, ‘Family Breakdown: The Rights of Grandparents and Grandchildren’ (1996) 11 Australian Family Lawyer 20. 335. (1999) 25 Fam LR 330; FLC ¶92-862. 336. (1999) 25 Fam LR 330 at 347. 337. (2008) FLC ¶93-387. 338. (2008) 40 Fam LR 357. 339. Ibid at [63]. 340. (1976) 2 Fam LR 11,311; FLC ¶90-132. 341. (1976) 2 Fam LR 11,311 at 11,320. 342. Ibid at 11,316–17. 343. (1966) 9 FLR 331. 344. Ibid at 336. 345. (1986) FLC ¶91-745. 346. Ibid at 75,435. 347. (1991) 15 Fam LR 574; (1992) FLC ¶92-305. 348. (1995) 19 Fam LR 837. 349. (1995) 19 Fam LR 837 at 853. 350. [2006] FamCA 1385. 351. (1980) FLC ¶90-839; (1980) 6 Fam LR 148. 352. Australian Law Reform Commission (ALRC), Report No 73, For the Sake of the Kids: Complex Contact Cases and the Family Court, AGPS, Canberra, 1995. 353. M v F (2006) 36 Fam LR 519 at [15]; R Chisholm, ‘Child Abuse Allegations in Family Law Cases: A Review of the Law’ (2011) 25 Australian Journal of Family Law 1. 354. See the discussion of this in J Fogarty, ‘Unacceptable Risk — A Return to Basics’ (2006) 20 Australian Journal of Family Law 249. 355. Which commenced operation on 7 June 2012. 356. For an example where sexual abuse was established, but the identity of the abuser was not, see Potter & Potter (2007) FLC ¶93-326. 357. R Chisholm, ‘Child Sexual Abuse: The High Court Rules on Onus of Proof’ (1989) 3 Australian Journal of Family Law 184. Note also the comments of Fogarty J in N & S (1995) 19 Fam LR 837 at 855; (1996) FLC ¶92-655. 358. R Glezer, ‘False Allegations of Child Sexual Abuse’ (1988) 62 Law Institute Journal 164. 359. See W Peters, G Wyatt and D Finkelhor, Prevalence: A Sourcebook on Child Sexual Abuse, Sage, Beverley Hills, CA, 1986, cited in J Myers, ‘Allegations of Child Sexual Abuse in Custody and Visitation Litigation: Recommendations for Improved Fact Finding and Child Protection’ (1989–90) 28(1) Journal of Family Law 1 at 4, where a review of 19 studies showed an average prevalence rate of 22.7 per cent for girls and 10.2 per cent for boys. See also J Fleming, ‘Prevalence of Childhood Sexual Abuse in

a Community Sample of Australian Women’ (1997) 166(2) Medical Journal of Australia 65 and research cited therein. 360. See for example the unsupported claims in D Fryer, ‘False Allegations in Family Law Proceedings: Using the Family Court as a Sword, not a Shield’ (2013) 3 Family Law Review 137 as to the impact of making a sexual abuse claim in the Family Court. 361. L Young, ‘Child Sexual Abuse Allegations in the Family Court of Western Australia: An Old Light on an Old Problem’ [1998] 3 Sister in Law 98. 362. See, for example, the decisions in Carpenter v Lunn (2008) FLC ¶93-377; Vasser & Taylor-Black (2007) 37 Fam LR 256; FLC ¶93-329; M v F (2006) 36 Fam LR 519; Ruth (aka Hutton) v Hutton (2011) 45 Fam LR 399; Stapleton v Hayes [2011] FamCAFC 70. See the discussion of case outcomes in L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era? (2014) 28 Australian Journal of Family Law 233. 363. For an example of a trial judge making such a statement, see Vasser & Taylor-Black (2007) 37 Fam LR 256; FLC ¶93-329 at [51]. The Full Court had also previously said this in M & M (1988) 12 Fam LR 606; FLC ¶91-979. 364. For further consideration of this issue, see J Fogarty, ‘Unacceptable Risk — A Return to Basics’ (2006) 20 Australian Journal of Family Law 249. 365. (1988) 12 Fam LR 606; FLC ¶91-979. 366. However, it has been noted that this finding produced some confusion in later decisions: see the discussion in J Fogarty, ‘Unacceptable Risk — A Return to Basics’ (2006) 20 Australian Journal of Family Law 249. 367. (1988) 12 Fam LR 606 at 611. 368. (1992) 15 Fam LR 285. 369. See P Parkinson, ‘Unacceptable Risk and the Investigation of Child Sexual Abuse’ (1990) 4 Australian Journal of Family Law 254. 370. (1996) FLC ¶92-695. 371. (1995) 19 Fam LR 387; (1996) FLC ¶92-655. 372. (2006) 36 Fam LR 396; FLC ¶93-303. 373. (2006) FLC ¶93-303 at [56]. 374. [2009] FamCA 565. 375. Ibid at [43]. 376. See Nikolakis v Nikolakis [2010] FamCAFC 52 for an example where allegations of abuse of other children were relevant. 377. For an example of a case where there was no finding of abuse, but still a finding of unacceptable risk, see Sellers v Sexton [2011] FamCAFC 227. In spite of the lack of any finding of sexual abuse, the evidence against the father in this case was quite compelling. Cf Dennison v Wang [2010] FamCAFC 182, where the mother’s allegations were found to be untruthful and there was no unacceptable risk; however, for other reasons no contact with the father was ordered. 378. (1995) 19 Fam LR 387; (1996) FLC ¶92-655. 379. For a detailed discussion of these issues, see L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era?’ (2014) 28 Australian

Journal of Family Law 233. 380. Crisp v Crisp [2012] FMCAfam 556 at [75]; Knightley v Brandon (2013) 272 FLR 332; [2013] FMCAfam 148 at [90]; Halston v Halston [2013] FMCAfam 16 at [194]; Boccard v Boccard [2013] FamCA 63 at [3]; Gabel & Meltzer [2014] FCCA 604 at [268]; Tyler & Sullivan [2014] FamCA 178 at [36]. However, cf Rivas & Stephen [2014] FCCA 2144 at [103]–[104]. See also P Parkinson, ‘Possibilities, Probabilities and the Standard of Proof in Determining an Unacceptable Risk of Sexual Abuse’ (2015) 29 Australian Journal of Family Law 1. 381. Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), House of Representatives, 2006. 382. L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era?’ (2014) 28 Australian Journal of Family Law 233 at 261. 383. Given the conclusion drawn in 9.107, this question is of some significance, as in essence the standard is in fact being applied to the question of whether abuse occurred or not. 384. Napier & Hepburn (2006) 36 Fam LR 395; FLC ¶93-303; Potter & Potter (2007) 37 Fam LR 208; FLC ¶93-326. 385. (2007) FLC ¶93-344. 386. See L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era?’ (2014) 28 Australian Journal of Family Law 233 at 254. 387. Marriage of Bieganski (B v B) (1993) 16 Fam LR 353; FLC ¶92-357; Koutalis & Bartlett (1994) 17 Fam LR 722; FLC ¶92-478; Re C & J (1996) FLC ¶92-697. 388. (1993) 16 Fam LR 353; FLC ¶92-357. 389. (1993) 16 Fam LR 353 at 368. 390. Ibid. For confirmation that care needs to be taken in making open-ended supervisory orders, see Fitzpatrick & Fitzpatrick (2005) 33 Fam LR 272; FLC ¶93-227; Moose & Moose (2008) FLC ¶93-375. 391. For example, Koutalis & Bartlett (1994) 17 Fam LR 722; FLC ¶92-478 by a majority of the Full Court (Ellis and Baker JJ). 392. (1996) 20 Fam LR 930; FLC ¶92-697. 393. (1996) FLC ¶92-697 at [91]. 394. (1996) 20 Fam LR 930 at 948–9. 395. (1994) 17 Fam LR 722 at 746; FLC ¶92-478. 396. (1994) 17 Fam LR 722 at 747–8. 397. Ibid. 398. (2004) 32 Fam LR 249; FLC ¶93-192. 399. (2004) 32 Fam LR 249 at 257–8. 400. Ibid at 258–9. 401. For further discussion of these issues, see T Carmody, Removing Obstructions to Justice in Family Court Sexual Abuse Cases, Fourth World Congress on Family Law and Children’s Rights, Cape Town, South Africa, March 2005; P Parkinson, ‘Family Law and Parent-Child Contact: Assessing the Risk of Sexual Abuse’ (1999) 23

Melbourne University Law Review 345; L Young, ‘Child Sexual Abuse Allegations in the Family Court of Western Australia: An Old Light on an Old Problem’ [1998] 3 Sister in Law 98. 402. (2007) 38 Fam LR 513. 403. Ibid at [33]. 404. (1988) 12 Fam LR 606; FLC ¶91-979. 405. J Fogarty, ‘Unacceptable Risk — A Return to Basics’ (2006) 20 Australian Journal of Family Law 249. These comments are echoed in R Chisholm, ‘Child Abuse Allegations in the Family Law Cases: A Review of the Law’ (2011) 25 Australian Journal of Family Law 1. See also the critique of decision-making in this area by P Parkinson, ‘Family Law and Parent-Child Contact — Assessing the Risk of Sexual Abuse’ (1992) 23 Melbourne University Law Review 345; L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era?’ (2014) 28 Australian Journal of Family Law 233; and P Parkinson, ‘Possibilities, Probabilities and the Standard of Proof in Determining an Unacceptable Risk of Sexual Abuse’ (2015) 29 Australian Journal of Family Law 1. 406. See Russell v Close [1993] FamCA 62 (as explained in A v A (1998) FLC ¶92-800). 407. Stapleton v Hayes [2011] FamCAFC 70. See also L Young, S Dhillon and L Groves, ‘Child Sexual Abuse Allegations and s 60CC(2A): A New Era?’ (2014) 28 Australian Journal of Family Law 233. 408. (1990) 14 Fam LR 251; FLC ¶92-159. See also VJ & CJ (1997) 22 Fam LR 166; FLC ¶92-772. 409. (1999) 24 Fam LR 213; FLC ¶92-834. 410. Note the definition of ‘examined’ in s 102A(5). 411. (1993) 16 Fam LR 485; FLC ¶92-376. 412. (1993) 16 Fam LR 485 at 507. 413. R Chisholm, ‘The “Paramount Consideration”: Children’s Interests in Family Law’ (2002) 16 Australian Journal of Family Law 87. 414. Sawant & Karanth [2014] FamCAFC 235; M v S [2006] FamCA 1408; (2007) FLC ¶93313 per Dessau J; Taylor v Barker [2007] Fam CA 1236; (2007) 37 Fam LR 461. 415. For discussion of the earlier case law in this area, see G Monahan and L Young, Family Law in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2006, [7.34]– [7.37]. 416. Marriage of Craven (1976) 1 Fam LR 11,276; FLC ¶90-049; Marriage of Holmes (1988) 12 Fam LR 103; FLC ¶91-918; Marriage of Fragomeli (1993) 16 Fam LR 698; FLC ¶92393; I & I (1995) 19 Fam LR 147; FLC ¶92-604. 417. For example, L Young, ‘Are Primary Residence Parents as Free to Move as Custodial Parents Were?’ (1996) 11 Australian Family Lawyer 31. 418. Ibid. See also L Young, ‘B v B: Family Law Reform Act 1995: Relocating the Rhetoric of Rights’ (1997) 21 Melbourne University Law Review 722. 419. For an analysis of decision-making in relocation cases, see P Esteal, J Behrens and L Young, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law 234.

420. In particular, note the early decision in Re B &B: Family Law Reform Act 1995 (1997) 21 Fam LR 676; FLC ¶92-755, which is not discussed further as later decisions are more significant. 421. (1999) 24 Fam LR 756; FLC ¶92-852. 422. (1999) 24 Fam LR 756 at 792–3, 806. 423. (2002) 29 Fam LR 74; FLC ¶93-112. 424. Ibid at 113. 425. For a summary of the law on relocation just prior to the 2006 reforms, see Walls & Robinson (2006) FLC ¶93-251. 426. (2006) 37 Fam LR 32; (2007) FLC ¶93-313. 427. (2007) FLC ¶93-313 at [28]. See also at [35]. 428. (2006) 36 Fam LR 422; FLC ¶93-286. 429. (2007) FLC ¶93-313 at [36]. 430. Ibid at [38]. See also the discussion of this point in F v F (2007) 38 Fam LR 52. 431. Taylor & Barker (2007) 37 Fam LR 461; FLC ¶93-345; Morgan v Miles (2007) 38 Fam LR 275; Malcolm v Monroe [2011] FamCAFC 16. 432. U v U [2002] HCA 36; (2002) 211 CLR 238 at [70], [72] per Gummow, Callinan JJ; Gleeson CJ and McHugh J agreeing. 433. Adamson & Adamson [2014] FamCAFC 232; Jurchenko & Foster [2014] FamCAFC 127. 434. Sayer & Radcliffe [2012] FamCAFC 209; Heaton & Heaton [2012] FamCAFC 139; Sawant & Karanth [2014] FamCAFC 235. 435. Sampson v Hartnett (No 10) (2007) 38 Fam LR 315; FLC ¶93-350. 436. Heaton & Heaton [2012] FamCAFC 139; Sayer & Radcliffe [2012] FamCAFC 209. 437. Browne & Keith [2015] FamCAFC 143 at [29]. 438. (2007) 38 Fam LR 315; FLC ¶93-350. 439. (2002) 29 Fam LR 74; FLC ¶93-112. 440. (2007) FLC ¶93-350 at [6]. 441. Ibid at [121]. 442. Ibid at [132]. 443. Ibid at [136]. 444. Ibid at [77]. 445. Ibid at [58]. However, on the question of jurisdiction, see the comments of Walters FM in Mills v Watson (2008) 39 Fam LR 52 at [171]–[172]. 446. (2007) FLC ¶93-350 at [78]. For further post-amendment examples of relocation decisions, see M & S (2007) 37 Fam LR 32; FLC ¶93-313; Taylor v Barker (2007) 37 Fam LR 461; FLC ¶93-345; F v F (2007) 38 Fam LR 52; Mazorski v Albright (2007) 37 Fam LR 518. 447. (2007) 38 Fam LR 315; FLC ¶93-350. 448. (2010) 240 CLR 461. Note that in Cales v Cales (2010) 44 Fam LR 376; FLC ¶93-459 at [89], the Full Court rejected an argument that the majority decision Sampson v Hartnett (No 10) (2007) 38 Fam LR 315; FLC ¶93-350 was overruled by MRR v GR.

449. [2014] FamCAFC 232. 450. [2014] FamCAFC 127. 451. (2002) 29 Fam LR 74; FLC ¶93-112. 452. [2014] FamCAFC 127 at [66]. 453. Ibid at [67]. 454. Ibid at [69]. 455. Jurchenko & Foster [2014] FamCAFC 127; Deiter & Deiter [2011] FamCAFC 82; Lorreck & Watts [2012] FamCAFC 75. 456. [2014] FamCAFC 127 at [37]. 457. P v P [2006] FMCA 518; T v O [2006] FMCAfam 709. 458. (2002) 29 Fam LR 74; FLC ¶93-112. 459. For example, Jurchenko & Foster [2014] FamCAFC 127 at [127]. 460. (2002) FLC ¶93-112 at [100]. 461. Ibid at [144]. 462. Ibid at [36]–[37]. 463. Sampson v Hartnett (No 10) (2007) 38 Fam LR 315; FLC ¶93-350. 464. Adamson & Adamson [2014] FamCAFC 232. 465. [2014] FamCAFC 232 at [38]. 466. (2007) FLC ¶93-350 at [74]–[75]. 467. Sampson v Hartnett (No 10) (2007) 38 Fam LR 315; FLC ¶93-350 at [57], confirmed in Adamson & Adamson [2014] FamCAFC 232 at [36]. 468. (2010) 240 CLR 461. 469. (2002) 29 Fam LR 74; FLC ¶93-112. 470. For a critique of this conclusion, see P Parkinson, ‘Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation’ (2008) 36 Family Law Review 145 at 164ff. 471. H Rhoades, ‘Revising Australia’s Parenting Laws; A Plea for a Relational Approach to Children’s Best Interests’ (2010) 22 Child and Family Law Quarterly 172. 472. The research on this topic is too vast to cite, but some examples include: D Duggan, ‘Rock-paper-scissors: Playing the Odds with the Law of Child Relocation’ (2007) 45 Family Court Review 193; T Carmody, ‘Child Relocation: An Intractable International Family Law Problem’ (2007) 45 Family Court Review 214; M Henaghan, ‘Relocation Cases — The Rhetoric and the Reality of a Child’s Best Interests — A View from the Bottom of the World’ (2011) 23 Child and Family Law Quarterly 226; E Jollimore and R Sladic, ‘Mobility — Are We There Yet?’ (2008) 27 Canadian Family Law Quarterly 341; J Behrens, ‘A Feminist Perspective on B and B (The Family Court and Mobility)’ (1997) 2 Sister in Law 65; L Young, ‘Resolving Relocation Disputes: The Interventionist Approach in Australia’ (2011) 23 Child and Family Law Quarterly 203; P Parkinson, ‘Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation’ (2008) 36 Federal Law Review 145; P Parkinson, J Cashmore and J Single, ‘The Need for Reality Testing in Relocation Cases’ (2010) 44 Family Law Quarterly 1.

473. Family Law Council, Relocation, AGPS, Canberra, 2006, available at www.ag.gov.au (accessed 12 May 2012). 474. P Parkinson, ‘Realities of Relocation: Messages from Judicial Decisions’ (2008) 22 Australian Journal of Family Law 35. 475. P Esteal, J Behrens and L Young, ‘Relocation Decisions in Canberra and Perth: A Blurry Snapshot’ (2000) 14 Australian Journal of Family Law 234; V Kordouli, ‘Relocation — Balancing the Judicial Tightrope’ (2006) 20 Australian Journal of Family Law 89. 476. (2001) 27 Fam LR 615; FLC ¶93-074. 477. For example, Bennett & Bennett (2001) 28 Fam LR 231 at 237–8; FLC ¶93-088. 478. (2001) FLC ¶93-074 at [18]. 479. Ibid at [19]. 480. Ibid at [26]. 481. Flanagan v Handcock (2001) 181 ALR 184 at 185. 482. [2015] FamCAFC 128. 483. Ibid at [53]–[55]. 484. Note the reference to this unresolved issue in Koldsjor v Addington [2009] FamCAFC 21 at [97]–[98]. 485. For a summary of the case law, see the majority decision in Flanagan v Handcock (2000) 27 Fam LR 615; FLC ¶93-074 at [36]. 486. See, for example, George & Radford (1976) 1 Fam LR 11,510; FLC ¶90-060. 487. Arthur & Comben (1977) 3 Fam LR 11,199; FLC ¶90-245; Ralph & Ralph (1977) 3 Fam LN No 34; FLC ¶90-292. 488. (1978) 4 Fam LR 462; FLC ¶90-510. 489. (1978) 4 Fam LR 462 at 471. 490. (1989) 13 Fam LR 83; FLC ¶92-016. 491. Beach v Stemmler (1979) FLC ¶90-692. 492. (1993) 16 Fam LR 803; FLC ¶92-408. 493. (1994) FLC ¶92-450. 494. For a case where the mother succeeded in having her surname included as an extra middle name of the young child, see C v B (2007) 38 Fam LR 1. 495. (2007) 37 Fam LR 595.

[page 662]

10 FINANCIAL SUPPORT OF MARRIED AND DE FACTO PARTNERS ___________________________

Introduction 10.1 In Chapters 10–15, we discuss the laws that determine the economic consequences of the breakdown of domestic relationships. Two aspects of economic readjustment arise for consideration: financial support and the distribution of property. The former is the subject of Chapters 10–11 and the latter of Chapters 12–15. However, the reader should bear in mind that separate discussion is for convenience only. In practice, the two aspects are strongly interdependent; their relationship is discussed in detail in Chapter 12. 10.2 A number of policy objectives underpin the detailed provisions of the modern law: recognition of different contributions to a relationship; adjustment of disparity in the parties’ economic positions resulting from the relationship; and the enforcement of financial responsibilities of parents towards their children. In more recent decades, the financial consequences of relationship breakdown have been increasingly viewed by

politicians and legislators as matters for individual responsibility rather than the public purse. Moreover, in the past, the law drew sharp distinctions between the financial consequences of marriage and of other less formal relationships. This pattern has now changed with respect to de facto relationships, as the financial consequences of these relationships have been aligned with those of marriage. Some policy tensions remain in this alignment of the family law consequences of marriage and de facto relationships, and are evident in the law’s detailed provisions and interpretation. An exception is the support of children by parents, where legislation has rendered the marital status of a parent an irrelevance to his or her financial obligations. In the course of the next two chapters we shall consider why marital status has had greater significance in the financial relationship between two adults than in the relationship between parent and child, and examine the validity of the reasons offered. Agreements about maintenance and property matters between married and de facto partners are discussed in Chapter 15. [page 663]

Support of married partners Introduction 10.3 The first part of this chapter considers the laws that impose mutual obligations on parties to a marriage to maintain their spouse. This is referred to as spousal maintenance. The second part of this chapter will consider the mutual obligations of parties to a de facto or other domestic relationship to maintain their partner. The discussion needs to be prefaced with the comment that in

recent years in Australia (as in other countries), it has become increasingly uncommon for long-term payments of spousal maintenance to be made either by order or agreement.1 Orders for property settlement (which may take account of factors that are also relevant to maintenance)2 may render spousal maintenance unnecessary or impracticable. For instance, the quantum of a lump sum order representing a property settlement may, when invested, provide the recipient with an adequate income.3 Conversely, the quantum of a property order may diminish the respondent’s resources to such an extent that he or she is unable to afford spousal maintenance. Moreover, the ‘clean break’ principle embodied in s 81 of the Family Law Act 1975 (Cth) (FLA) favours a resolution of financial matters that avoids continued obligations, although the policy of s 81 yields to the specific statutory provisions governing spousal maintenance: ss 72 and 74.4 Orders for maintenance of a former de facto partner under state legislation (in those states where such was allowed) were rare. Another major factor has been the impact of the Child Support Scheme. A parent’s financial obligations towards children may in practice leave little income available to meet a maintenance claim by a former spouse or partner. Empirical evidence for the decline in spousal maintenance under the FLA is not extensive. The evidence, albeit dated, is summarised in the Family Law Council’s 1989 Discussion Paper on Spousal Maintenance.5 Data from a survey conducted by the Australian Institute of Family Studies in late 1997 suggested that applications for periodic spousal support were rare, minimal and brief, and that patterns of payment and [page 664] receipt vary according to gender; this continues to be the case.6 Nevertheless, spousal maintenance retains significance in ‘deep pocket’ cases, where the parties have enjoyed a high standard of living and ample resources are available.

10.4 It is conceivable that we will witness a renewal of interest in spousal maintenance in the future — as a response to periods of serious economic downturn, such as occurred in of 2008–09, and as one means of equalising the economic effects of marriage and its breakdown. The Family Court of Australia has on several occasions over the past decades indicated its willingness to take judicial notice of the negative impact of marriage breakdown on women’s economic position in a difficult employment market.7 This coincides with a more robust use of the ‘s 75(2) factors’ by the Family Court in decisions to address the disparity in the parties’ respective financial positions that result from the marriage.8 These developments are discussed in more detail later in this chapter: see 10.25ff.

The history of spousal maintenance 10.5 In order to understand the policy dilemmas inherent in the current law of spousal maintenance, and to address the future direction of this area of law, it is necessary to trace the historical development of the law — in particular, to set the law of financial provision in the context of the changing laws on marriage and divorce. The principles of entitlement to maintenance between spouses at any given time are consequential on and determined by the current concepts of marriage and divorce. In other words, a particular concept of marriage and of the circumstances in which it can be brought to an end necessarily determines a particular consequential model of maintenance provisions. An excellent account of the history of maintenance appears in the 1974 Finer Report (UK).9 [page 665]

10.6 Prior to the Reformation, when the law (and the church) regarded marriage as a union of husband and wife indissoluble except by death, marriage gave rise to a life-long entitlement to support of the wife, unless forfeited by her. At common law, the husband was responsible for his wife’s maintenance, since they were one in law and she was therefore incapable of holding property or entering into contracts on her own account. The marital relationship raised a legal right in the wife to such support. That right was forfeited absolutely if she committed adultery. If she deserted the husband, it was forfeited during the period of desertion. However, the wife’s common law entitlement to maintenance was not easy to enforce in practice. If the husband deserted his wife, or failed to provide her with adequate means of support, she could not sue him, again because of the unity in law of husband and wife.10 The common law courts did allow the wife to make contracts for necessaries which were enforceable against her husband, provided she could find traders who were willing to supply them to her and to undertake the litigation to enforce them if necessary. 10.7 Before 1857, when statutory jurisdiction was conferred on a new court over divorce, separation and ancillary financial relief, inter-spousal disputes were matters for the ecclesiastical courts. If the wife was deserted, she could obtain a decree of restitution of conjugal rights from those courts. Originally, the sanction for breach of a decree of restitution was excommunication (after 1813, it was imprisonment). She could obtain alimony (maintenance) as ancillary relief to a decree of divorce a mensa et thoro (in modern times, a decree of judicial separation) which entitled her to live apart from the husband without, however, conferring a right of remarriage on either party. Alimony was intended for her day-today maintenance, not to enable her to accumulate a private fortune.11 As the concern of the ecclesiastical courts was primarily to enforce the duty of spouses to live together, their preoccupation was with spiritual censure and excommunication rather than the

practical aspects of financial need. The court also had no power over the husband’s property, but only over his person, which perhaps explains the nature of the sanctions. 10.8 From a social point of view, this was very inadequate legal machinery. Ecclesiastical litigation was expensive and protracted, so these remedies were not available to the great majority of the population. To meet the problems arising from having wives and children unprovided for, the common law devised another indirect and thoroughly unpalatable system (namely, the development of the ‘poor law’). To prevent deserted families from being ‘thrown on the parish’, the poor law enabled destitute persons to be given relief (ie charity) and also the recovery of [page 666] the amount involved from anyone who was legally liable for the support of the persons relieved. Failure to meet obligations so incurred was an indictable offence. The essence of the poor law system has been characterised as: … the means through which the public supported those who were unable to support themselves, but sought reimbursement by imposing a legal liability upon their relatives in accordance with early seventeenth century notions of kinship.12

10.9 The detailed way in which this crude maintenance system for the poor was administered strikes the modern reader as harsh and unsympathetic, and fully in keeping with what has come to be regarded as the self-righteous attitude of the Victorians to poverty as a crime, or at least as a manifestation of moral and spiritual delinquency and degradation. The Finer Report describes it this way: The operation of the system in its later developed form is best observed in its midVictorian application to unmarried mothers and their illegitimate children. Relief was provided to the mother in the workhouse. After childbirth and a period of nursing she was separated from her child, and she usually left the workhouse. The

child remained there. Girls, in due course, were put out to domestic service and often ended up on the streets. Boys were put out to the merchant service or other harsh trades. The mother could bring proceedings for an affiliation order against the putative father, but these could only take the form of a complaint to the magistrate. The maximum amount payable until the end of the first World War was five shillings a week.13

The association in the poor laws of indigence (however caused) with delinquency, vagrancy, idleness and disorderliness gave to the early maintenance legislation a flavour of disrespectability that it found hard to shake off. Persons resorting to the Magistrates’ Courts for maintenance applications found themselves rubbing shoulders with drunks and petty criminals in the precincts of those courts. Regard for the human dignity of the applicant in the Magistrates’ Court was generally slight. 10.10 In Australia, maintenance legislation for deserted wives and children was first enacted in New South Wales in 1840.14 This Act was applicable in Victoria and Queensland as well, neither of which had by then become a separate colony. The early New South Wales Act was to become the prototype for subsequent Australian maintenance legislation. That Act provided remedies for a deserted wife, including contributions to her maintenance through a ‘moderate sum or allowance’ payable by the husband on a weekly or monthly basis, and for the [page 667] maintenance of children by their father, including illegitimate children as well as children born in wedlock.15 Similar Acts (with variations between them) became part of the law in all the colonies or states of Australia, under varying titles, although that of ‘Maintenance Act’ was the most common. 10.11 In the early 1960s, influenced by the impetus given by the then Commonwealth Attorney-General, Sir Garfield Barwick, to

concerted moves for ‘uniform legislation’ by the different states on a variety of topics, ‘uniform’ Maintenance Acts were enacted by the states, and by the Commonwealth in respect of the Australian Capital Territory and the Northern Territory. Until the enactment of the FLA, maintenance of married spouses in the period prior to divorce was governed by state legislation. The Matrimonial Causes Act 1959 (Cth) brought maintenance claims ancillary to divorce or other forms of principal relief into the sphere of Commonwealth law. The distinction persisted until the FLA brought all maintenance applications by spouses within Commonwealth law. 10.12 The Matrimonial Causes Act 1857 (UK) abolished the matrimonial jurisdiction of ecclesiastical courts and vested it in a new court for divorce and matrimonial causes, which was empowered to grant divorces, judicial separations and ancillary relief — alimony on separation to wives, and financial provision on divorce.16 Under the 1857 legislation, the grounds on which a divorce could be obtained were strictly fault-based; in fact they had been adopted in substance from the ecclesiastical jurisdiction. The pattern of the UK legislation was followed closely in all the Australian colonies, the first being South Australia in 1858. The basic model of fault-based divorce held sway, with some modifications (principally, the addition of a separation ground) in both the UK and Australia, for well over a century. The Matrimonial Causes Act 1959 (Cth) represented a mixed model in which fault grounds predominated. That Act operated in Australia until the FLA commenced in 1976. The history and reform of divorce laws, including the shift from considerations of fault to the fact of breakdown, are discussed in Chapter 1.17 The purpose of the present discussion is to outline the implications of a faultbased divorce system for the substantive laws of maintenance. 10.13 Under a system in which the availability of divorce is based solely on the commission of a ‘matrimonial offence’, marriage is necessarily an institution with strongly contractual overtones. It is essentially a relationship in which the

[page 668] parties exchange promises that create mutually enforceable obligations. Divorce is available only if one party breaches those obligations, and only at the suit of the other party (ie the ‘wronged’ party). ‘Matrimonial offences’ such as adultery, cruelty and desertion amount in effect to breaches of the marriage contract, entitling the ‘wronged’ or innocent party to elect to be released from the marriage contract by petitioning for divorce. The implications of this particular model of divorce law for the financial consequences of dissolution lie in the closeness of the analogy with the law of contract. In ordinary contract law, the party against whom the breach is committed is entitled, by an award of damages, to be placed in the same financial position as if the terms of the contract had been properly carried out by the other party. Applying this principle to divorce, under a wholly fault-based system, an innocent spouse who exercises their right to be released from marriage should not be financially worse off by exercising the right than they would have been had the marriage continued. This is known as the ‘minimal loss principle’.18 The objectives of maintenance laws under a fault-based divorce system are ideally to place the innocent spouse and children in the financial position they would have enjoyed had the marriage not broken down and the other party properly discharged the financial obligations created by marriage. This objective found expression in s 25 of the Matrimonial Causes Act 1973 (UK) until its amendment in 1984. 10.14 Under the Matrimonial Causes Act 1959 (Cth), divorce in Australia was available on predominantly fault-based grounds, but with some no-fault grounds also present (such as five years’ separation and insanity). Not surprisingly, therefore, given the ‘mixed’ basis for divorce itself, the maintenance provisions of that Act did not adhere to a purely fault-based or minimal loss model. At common law, a wife by her adultery forfeited her right to

maintenance absolutely; this was not the case under the Matrimonial Causes Act. Section 84(2) of that Act specifically provided that a maintenance order could be made in favour of a party against whom a divorce decree was made. The court’s discretion in maintenance proceedings was wide; it could make such order as it thought ‘proper’ and the list of relevant factors (ie ‘means, earning capacity, and conduct of the parties to the marriage and all other relevant circumstances’)19 was far shorter and less detailed than under current law. Nevertheless, the reference to ‘conduct’ required judges to consider responsibility for the breakdown of marriage, and in some cases to adopt the minimal loss approach outlined above, while taking care to eschew any notion that the purpose of the award was punishment of the party at fault. The following [page 669] example is illustrative of this view. In the 1964 case of Davis v Davis,20 the Victorian Supreme Court stated: In the task of ascertaining what is fair and reasonable as between an adulterous husband and a wife in respect of whom he has repudiated his matrimonial obligations, ordinary notions of fairness require that his failure to adhere to his obligations may be taken into account, not for the purposes of punishment, but of justice in the particular case … The broad notion acceptable to the community is, I think, that if a husband of means irretrievably destroys the reality of a marriage, and it appears that he contemplates marriage with another woman whom he prefers to his wife, the court should ensure that he pays to the spouse he is repudiating whatever, having regard to his means and his conduct towards her, and her conduct towards him, is fair and reasonable, recognizing that he is pursuing his own gratification in disregard of obligations he undertook. In doing so the court is not ‘punishing’ the husband; it is merely insisting that before he shall have the gratification he desires, he shall make fair amends from his fortune for breaking the promise which marriage involves, a promise which should have taken on deeper meaning with the years, but which in his case has proved illusory.21

Conversely, in Adams v Adams22 the Supreme Court of New South Wales said of the wife as the ‘guilty party’:

In the usual case a wife who has been found guilty of a matrimonial offence will not be awarded maintenance … in general terms the occasions where the court feels that it is just and proper to make an order in favour of a guilty wife are rare indeed.23

Such pronouncements would be totally out of place in the interpretation of the FLA provisions. A useful short account of the previous law is provided in the 1976 judgment of the Family Court in Marriage of Soblusky.24 In that judgment, the Full Court also explained the relevance of fault under state legislation: Under the various state Maintenance Acts conduct was a relevant and indeed integral part of any claim for maintenance. A complainant in such proceedings had to establish not merely elements of need and capacity but also elements of ‘desertion’ or ‘wilful neglect’ and it was open to a respondent to such proceedings to resist such claim on the basis of the ‘conduct’ of the applicant.25

[page 670]

Policy issues in the current law 10.15 The general trend of law reform in Western countries throughout the 1960s and 1970s was to replace fault-based divorce with the concept of divorce available once a marriage had irretrievably broken down. Irretrievable breakdown is essentially a factual matter, although different countries have adopted differing legislative definitions of what is evidence of breakdown. In Australia, irretrievable breakdown can only be established by evidence of 12 months’ continuous separation.26 In determining whether a marriage has broken down irretrievably, considerations of fault or blame are inappropriate. The FLA provision necessarily makes divorce a remedy available, sooner or later, at the instance of one party even against the wishes of the other; in effect, marriage is an institution dissoluble at the instigation of either party. What model of maintenance law follows from this concept of divorce?

10.16 Clearly, the shift to no-fault divorce posed a fundamental challenge to the laws dealing with financial readjustment between spouses, as the contractual analogy was no longer appropriate. As divorce is no longer conceived as a remedy available only to the ‘innocent’ party, essentially for breach of the marriage contract by the other party, the financial consequences of divorce can no longer be cast in a contractual model. In particular, the ‘minimal loss principle’ cannot apply. Under a system where divorce is based on irretrievable breakdown of marriage, the change in the parties’ status will be viewed as effecting a fundamental change in the nature of their financial relationship. However, beyond that it is difficult to say that no-fault divorce necessarily commits a legal system to any particular model of maintenance or of property division laws as an inevitable consequence. 10.17 In more recent years and with the advent of no-fault divorce, there has been debate in Australia and elsewhere as to the policies and principles on which entitlement to spousal maintenance should be based. Dilemmas evident in the current law and possible future directions are considered later in this chapter. For the moment, the following policy issues are raised by way of preface to an account of the current provisions of the FLA. The achievement of financial independence by the parties to a marriage that has broken down is an ideal that proves difficult to realise when general economic conditions, including the employment market, are problematical. The issues become particularly focused when one party’s post-separation employment prospects have been adversely affected by the role assumed during marriage — usually that of primary homemaker and parent. While on the one hand the enforcement of spousal maintenance obligations after breakdown may be criticised as perpetuating dependency, on the other hand,

[page 671] spousal maintenance may be viewed as one means of equalising the economic effects of marriage and its breakdown between the parties. To an extent, private law may be used to help redress inequalities between men and women which stem from the role divisions systematically adopted in relationships, and spousal maintenance is one means to do so. Obviously there are other means, including appropriate orders for division of property, but these may depend on the availability of sufficient capital assets. Another important issue is the appropriate balance to be struck between the respective responsibilities of the individuals concerned and the community at large (through the provision of social security benefits) in meeting the costs of family breakdown. In more recent years, the balance in Australia has shifted towards the enforcement of individual obligations under private law. Finally, the relevance of conduct in financial proceedings has received fresh attention, in the context of the debate on how the law expresses its condemnation of violence within the home.27

Jurisdiction and types of maintenance orders 10.18 An application for spousal maintenance is a relevant ‘matrimonial cause’.28 Since the FLA commenced operation in 1976, all applications by married parties for maintenance have come within federal jurisdiction,29 irrespective of whether proceedings are instituted before or after divorce. Reciprocal maintenance obligations arise from marriage itself and so are squarely within the ‘marriage’ power in s 51(xxi) of the Constitution.30 A spouse may initiate maintenance proceedings against the other even though they are not separated, although such applications are very rare. An unusual

[page 672] illustration is the 1981 case of Marriage of Eliades,31 where a husband stopped giving his wife housekeeping money and instead purchased food himself. In her application, the wife was successful in obtaining a maintenance order, payable to her bank account by the husband, for household expenses for herself and the family. The Full Court (Bryant CJ, May and Moncrief JJ) signalled in Stanford v Stanford32 that orders for spousal maintenance may be appropriate in a case where the marriage is intact but the husband and wife are physically separated by reason of ill health and one of the parties to the marriage is no longer able to reside in the matrimonial home.33 If a marriage has been dissolved, an application for spousal maintenance or for a property order must be made within 12 months of the final divorce order, unless leave is granted to apply out of time.34 This prima facie restriction is a reflection of the ‘clean break’ principle expressed in s 81 of the FLA.35 Leave may be granted on the basis of hardship (ie the hardship that a spouse would suffer if leave were not granted). The court considers the potential consequences to a spouse of loss of the right to claim maintenance, and the concept of ‘hardship’ is a relative one to be considered in the circumstances of the particular case.36 Leave may also be granted where the applicant cannot support himself or herself adequately without a means-tested pension. This provision, introduced by the Family Law Amendment Act 1987 (Cth), is one of several reflecting an increased emphasis on reducing public expenditure on the consequences of marriage breakdown.37 10.19 Courts have the power to make two different types of ‘temporary’ spousal maintenance orders: interim orders and urgent orders.38 An interim order for maintenance is an order of limited duration which can be made under s 80(1)(h) and will operate until a further order or an order disposing of the

proceedings is made. An application for interim maintenance is different from an application for urgent maintenance. A court can order a payment by way of urgent maintenance under s 77 of the FLA where a party is in immediate need of financial assistance, but it is not practicable in the circumstances to make a final determination. The order is designed to meet pressing needs, is in the nature of a stop-gap, and will normally be relevant [page 673] for a defined or definable period of time.39 An application for urgent maintenance under s 77 is heard at a time when all the evidence needed for an application for interim or final orders is not yet to hand and may have to be made ex parte.40

Entitlement to spousal maintenance 10.20 Under the FLA, an award of spousal maintenance requires first that the court makes a threshold finding under s 72, and second that it exercises its power under s 74.41 At both stages, consideration of the extensive list of factors found in s 75(2) is relevant. The Act’s provisions are gender-neutral in terminology.42 Nevertheless, social and economic circumstances have rendered reported cases of spousal maintenance awards to husbands a rarity. There is ample evidence that women remain economically disadvantaged in contemporary society, both generally as employees, and also in their standard of living following breakdown of a relationship.43

The threshold: s 72 10.21 An application for spousal maintenance must first meet the ‘threshold’ of s 72 before the power in s 74 may be exercised.

The Act confers on spouses a reciprocal obligation to maintain, but that obligation is limited in nature. Section 72(1) provides: A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if and only if, that other party is unable to support herself or himself adequately whether — (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental capacity for appropriate gainful employment; or (c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).

[page 674] Entitlement to spousal maintenance is therefore dependent on two criteria. On the part of the spouse whose maintenance is in issue, there must be a need, and on the part of the spouse whose duty is being invoked, there must be an ability to pay. These two considerations must be balanced against each other by the court in each case.44 Section 72(2) was added in 200545 and provides: The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.

This provision was part of a package of reforms to bankruptcy and family law that, according to the then Attorney-General, Hon Philip Ruddock, offered: … procedures and protections to the non-bankrupt spouse that were not previously available. At the same time the Court can be on notice about the interests of creditors of a bankrupt spouse and can take those interests into account in determining family property or spousal maintenance orders.46

The relevance of bankruptcy as a factor in the making of a spousal maintenance order is discussed at 10.32.

10.22 The philosophy of the Act is clearly not that marriage per se as a status creates an entitlement to maintenance for life.47 In the 1991 case of Vick & Hartcher,48 the Full Court of the Family Court stated that: The duty of spouses to maintain each other is now entirely governed by the Family Law Act and the present law is, in our view, correctly stated by Dickey A, Family Law, 2nd ed, Law Book Co, Sydney at p 236 that ‘from the very moment that a couple become husband and wife, section 72 of the Family Law Act 1975 (Cth) imposes a liability upon each spouse to maintain the other in certain circumstances.’ Section 72 defines the circumstances in which, and only in which, the duty to maintain a spouse arises; that is, when a person by one or more of the reasons set out in the section is unable to support himself or herself adequately and then only to the extent that the economically stronger party is reasonably able to do so … The fact of marriage does not, by itself, give rise to such an

[page 675] obligation and, indeed, it would be inconsistent with notions of sexual equality to imply in the statute a duty to support a wife merely by reason of marriage.49

In the 1995 decision in Mitchell & Mitchell,50 the Full Court stated that the threshold of s 72(1) is whether the applicant is unable to support themselves adequately by reason of the matters set out in paras (a), (b) or (c) of that subsection, but what is ‘adequate’ is to be determined having regard to any relevant matter referred to in s 75(2).51 The ‘apparently absolute’ terms of s 72(1) consequently operate with reference to the matters in s 75(2).52 The Full Court affirmed this view in Kiesinger & Paget,53 stating that the concluding words in s 72(1) ‘cannot be treated as mere surplus’.54 The factors in s 75(2) are relevant both initially at the threshold level of s 72 and subsequently at the stage when the court considers the exercise of its power under s 74. Both factors specifically mentioned in s 72(1) itself and those in s 75(2) are predominantly prospective — they look forward to the parties’ post-separation needs and means.

10.23 A question that has taxed the Family Court since the FLA came into force is how ‘adequately’ is to be interpreted, particularly in cases where the parties enjoyed a wealthy lifestyle during the currency of the marriage. Section 75(2)(g) is of particular relevance here, since it directs the court to take account of a post-separation ‘standard of living that in all the circumstances is reasonable’. In some earlier instances where substantial spousal maintenance had been awarded, the court’s approach appeared to resemble the ‘minimal loss principle’,55 arguably inconsistent with the Act’s general philosophy on marriage breakdown. However, over the last decade the Full Court has stressed that ‘adequacy’ is not to be determined by reference to any fixed or absolute standard, but always by having regard to the variety of factors in s 75(2)56 and a family’s individual circumstances.57 ‘Adequately’ is not determined on a subsistence level.58 At the same time, even when a respondent’s means allow, there is no ‘fettering principle’ that he or she should automatically support the former spouse at a pre-separation standard of [page 676] living.59 Consequently, the approach to determining the threshold question of ‘adequately’ is one that has regard to reasonableness in all the circumstances. The current approach stresses the width of judicial discretion, and here (as in many areas of family law) it is difficult to draw generalisations or predict outcomes from previously decided cases. 10.24 The threshold requirement of s 72(1) requires that the party claiming spousal maintenance be unable to support themselves adequately. How is this requirement to be interpreted where the claimant experiences difficulties in re-entering the workforce after a period of absence, or of reduced employment due to the role assumed during marriage? To what extent is the

court to take notice of the general state of the employment market? What if the claimant can obtain some employment after separation, but only that which does not reflect the claimant’s true qualifications and is less remunerative than that enjoyed by the other party? An order for spousal maintenance in such circumstances, instead of being criticised as perpetuating dependency, may instead be viewed as necessary to equalise the disparity in the spouses’ financial positions which has been produced by the marriage. An interesting and highly significant discussion of these issues in the context of s 72 is to be found in the judgment of the Full Court in Mitchell & Mitchell:60 see 10.22. The marriage lasted 27 years. The husband was a barrister with superannuation expectations; the wife qualified as a registered nurse but did not work full time in that capacity after the birth of the parties’ children, although she obtained some part-time nursing work and also worked as a receptionist. The trial judge (Moore J) awarded 90 per cent of the property to the wife, but dismissed her claim for spousal maintenance, holding that she had not met the requirements of s 72(1) because (among other things) she had not made sufficient efforts to obtain further employment.61 The Full Court (Nicholson CJ, Fogarty and Jordan JJ) allowed the wife’s appeal against the dismissal of her maintenance application and remitted it for rehearing. It determined the issue of entitlement under s 72(1) having regard to s 75(2). In so doing, it took judicial notice of studies and research both in Australia and overseas into the economic impact of marriage breakdown on women in particular, with the proviso that judicial notice is not to be perceived as a substitute for evidence in the particular case. Their Honours commented: Importantly, and particularly in more recent times, there is the notorious circumstance that there is a significant gap between theory and reality for employment, especially for people in middle age, lacking experience and

[page 677] confidence, and who have been out of the skilled workforce for many years, and in the context of current high unemployment. Loss of security, missed promotion opportunities, loss of retraining in developing skills in an increasingly skilled workforce with the loss of confidence which this brings, particularly in times of high unemployment, are notorious circumstances of which the court must take notice and apply in a realistic way. In this regard, we refer to the detailed analysis of comparable problems in Canada by the Supreme Court of Canada in Moge v Moge (1992) 43 RFL (3d) 345 and the discussion by this Full Court in Best,62 above, especially at Fam LR 962; FLC 80,295 and the reference in those cases to the ‘feminisation of poverty’ and to some of the numerous articles upon that subject both here and overseas to that time. For useful articles discussing the judgment in Moge see also Toward an Equitable Distribution of Resources: Support after Moge and Moge (1994) 16 Advocates Quarterly 452 and Equality and Support for Spouses (1994) 57 Mod LR 681 … Like Canada, Australia has a body of research indicating that mothers who are the primary carers of dependent children inevitably drop out of the paid workforce and consequently suffer financial deprivation which is exacerbated by marriage breakdown: see the Australian Institute of Family Studies publications, McDonald (ed) (1986) Settling Up: Property and Income Distribution on Divorce in Australia; Funder Harrison and Weston (1993) Settling Down: Pathways of Parents After Divorce. In our view there are significant advantages to the court being able to take judicial notice of research concerning the economic consequence of marriage and its dissolution.63

In relation to the facts before it, the Full Court considered that the ‘wider social conditions’ suggested that it was unlikely that the wife would experience much success in obtaining appropriate employment. In conclusion on the s 72(1) threshold, the their Honours commented: In the ultimate, this could only be finally determined by enquiries and applications by the wife. But her age, her legitimate needs, the standard of living enjoyed by the parties during the course of the marriage, and the husband’s professional skills and prospects of high earnings for the foreseeable future, suggest to us that any additional employment she obtains would be unlikely to meet those needs. We do not doubt that the husband has a capacity to meet a reasonable maintenance order.64

Although the shift in judicial attitude in decisions like Mitchell towards recognition of the ‘feminisation of poverty’ might be thought to encourage more claims for spousal maintenance, there

has not been a noticeable increase in applications in the years since this decision. Arguably, this may be attributed to the relatively good economic conditions and lower unemployment that Australia [page 678] has enjoyed for much of this period. It may also be attributed to the emphasis on property division in the process of financial adjustment and the effect of child support obligations on a respondent’s means to pay: see 10.40.

The court’s power under s 74 and the s 75(2) factors 10.25 Once the threshold of s 72(1) has been crossed, s 74(1) of the FLA empowers the court to make ‘such order as it considers proper for the provision of spousal maintenance’. In so doing, the court is required to take account only of the list of factors set out in s 75(2); namely: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection 3, the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

[page 679] (l) the need to protect a party who wishes to continue that party’s role as a parent; and (m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (p) the terms of any financial agreement that is binding on the parties to the marriage; and (q) the terms of any Part VIIIAB financial agreement that is binding on a part to the marriage.

Despite being an exhaustive list, the court’s discretion in relation to spousal maintenance remains wide. Moreover, the relevance of each factor will obviously differ from case to case, and the factors are themselves not isolated but interrelated.65 The interrelated nature of the factors and their significance to the decision as to what order would be proper is evident from the statement by the Full Court (Nicholson CJ, Lindenmayer and McGovern JJ) in Marriage of Bevan66 that an award of spousal maintenance requires: (1) a threshold finding under s 72; (2) consideration of s 74 and s 75(2); (3) no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and (4) discretion exercised in accordance with the provisions of s 74, with ‘reasonableness in the circumstance’ as the guiding principle.67

[page 680] The contrast between the highly discretionary approach to spousal maintenance under the FLA and to child support under the Child Support (Assessment) Act 1989 (Cth) could scarcely be more striking.68 Since each spousal maintenance case necessarily turns on its own facts, it is impossible to make generalisations about the operation of the s 75(2) factors. Moreover, many of the reported decisions illustrate the operation of the s 75(2) factors in the context of property division, given the effect of s 79(4)(e). While it is more common for parties to enter into consent orders to resolve any spousal maintenance dispute (pursuant to s 80(1)(j) of the FLA), spouses may, in the alternative, enter into a

financial agreement covering aspects of maintenance, whether before or during their marriage, or after a divorce.69 Section 75(2) was amended in 200070 to include s 75(2)(p), which requires the court to consider the ‘terms of any financial agreement that is binding on the parties’. For a financial agreement to be binding, it must have been entered into in accordance with the provisions of Pt VIIIA. Financial agreements between parties to a marriage are discussed in more detail in Chapter 15. The balance of the subsections in s 74 (ie s 74(2)–(8)) were added in 200571 as part of a major reform of bankruptcy and family laws: see 10.21. Where either party to the marriage is bankrupt, the effect of these provisions is to protect the interests of the bankruptcy trustee and the bankrupt’s creditors. Where the bankruptcy trustee seeks to be joined as a party to the proceedings, and the court is satisfied that the interests of the bankrupt’s creditors may be affected by the making of a spousal maintenance order, ‘the court must join the bankruptcy trustee as a party to the proceedings’ (emphasis added).72 If this occurs, the bankrupt spouse ‘is not entitled to make a submission to the court in connection with any vested bankruptcy property’ of the bankrupt spouse, except by leave.73 Leave may only be granted where the court is satisfied that exceptional circumstances exist.74 A similar procedure is available where the relevant spouse is a ‘debtor to a personal insolvency agreement’.75

The parties’ needs and means 10.26 Many of the s 75(2) factors relate broadly to the parties’ respective needs and means following marriage breakdown. In this category, some factors relate to how the marriage itself may have affected a party’s financial position. For instance, [page 681]

‘care or control of a child of the marriage’ (factor (c)) may diminish the carer’s earning capacity, as well as creating accommodation needs.76 This factor should be read together with factor (l) — ‘the need to protect a party who wishes to continue that party’s role as a parent’. However, neither of these factors operates in isolation from the other provisions in the subsection, and the weight accorded to them varies from case to case. Significant considerations appear to include the age of any child concerned77 and any special physical or emotional needs of the child.78 In the 1992 case of Marriage of Nixon,79 Mullane J rejected any notion that factor (l) is only relevant where no alternatives of child care or employment are available, but equally dismissed the notion of any principle that a parent with care of young children is automatically entitled to spousal maintenance. In other words, the provision does not confer any absolute right. Interestingly, the Australian Law Reform Commission recommended back in 1987 that the current s 75(2)(l) be repealed because its substance is already contained in the paragraph concerning the care of children; that is, s 75(2)(c).80 No such legislative change has been made to this provision and it is doubtful that such a change will be made in the near future, given that a similar provision was recently enacted in the FLA for the benefit of de facto couples.81 The Family Court has also commented on s 75(2)(k) — ‘the duration of the marriage and the extent to which it has affected the earning capacity of the party under consideration’. It has been stated that the aim of this provision is not to distinguish between short and long marriages per se,82 but rather to permit the court to consider ‘the erosion which the duration of the marriage has had upon the earning capacity … referred to’.83 A common situation that has already been mentioned is one party leaving the workforce either full time or part time to care for the family. Section 75(2)(j) requires the court to consider ‘the extent to which the party … has contributed to the income, earning capacity, property and financial resources of the other party’. This provision

has the potential to do some justice in the situation where one party works to support the other through further education and training, leading to highly paid employment through professional qualifications. [page 682] This occurred in the 1976 case of Tye & Tye (No 2),84 where a young wife worked for four years to enable her husband to gain qualification and increase his earning capacity, ‘only to be deprived of the fruits thereof’85 when he took up well-paid employment in Singapore, from where he announced that the marriage was at an end. The wife’s contribution to her husband’s qualification was recognised in that, though young, she was awarded some lump sum maintenance.86 The issue of professional qualifications obtained by one party at the partial expense of the other has generated much debate in other jurisdictions; there are examples in the United States of courts classing degrees and other qualifications as ‘matrimonial property’ to be notionally available for distribution for equivalent value.87 Section 75(2)(g) directs the court’s attention to a post-separation ‘standard of living that in all the circumstances is reasonable’. This has already been discussed: see 10.23. Judicial interpretation emphasises reasonableness in all the circumstances, without fettering principles that would require either the application of the ‘minimal loss principle’ (ie the continued expectation of maintaining the status quo in ‘deep pocket’ cases) or a concept of subsistence level support.88 10.27 Other s 75(2) factors refer to means and needs more generally, without express reference to the marriage and the parties’ respective roles within it. Section 75(2)(a) refers to the ‘age and state of health of the parties’ and overlaps to a large degree

with the more general references in s 75(2)(b) to the ‘income, property and financial resources of each of the parties and the capacity of each of them for appropriate gainful employment’. Factor (a) rarely appears to be accorded significance in isolation from other factors. However, factors (a) and (b) in combination can justify an award of maintenance to an older spouse who has been out of the workforce because of their domestic role.89 The court will take notice both of the current state of the employment market (which in practice restricts a former spouse’s ability to retrain)90 and of published research into the general economic consequences of marriage breakdown.91 This issue was discussed [page 683] earlier: see 10.24. ‘Rehabilitative’ maintenance may be awarded for a limited period where there is a reasonable prospect of a spouse re-entering the workforce.92 Moreover, s 75(2)(h) is specifically rehabilitative in its object, in requiring the court to consider ‘the extent to which the payment of maintenance … would increase the earning capacity of that party by enabling that party to undertake a course of education or training’. In the 1977 case of Marriage of Hope,93 a wife was awarded periodic maintenance to enable her to complete a training course and so acquire a qualification that would make her self-supporting within two years (by contrast, the marriage had lasted 22 years). The award of rehabilitative maintenance for a defined period accords well with the ideal of the parties attaining financial independence after the breakdown of their marriage, but it assumes an ease of re-entry into the workforce that in reality is often problematical. Ill health may create special needs requiring an award of spousal maintenance, as for instance in the 1980 case of Marriage of Dow-Sainter94 (where the applicant wife had multiple sclerosis), or may reduce capacity for employment.95 Statutory provisions and judicial interpretations of them make it clear there

need be no nexus between ill health and the circumstances of the marriage and its breakdown. As a spouse is only required to support the other spouse to the extent that he or she is reasonably able to do so, it may be considered unreasonable in all the circumstances to look to a respondent’s earning capacity and expect that spouse to work harder than they are presently working so as to be better able to provide spousal maintenance. In so deciding in DJM & JLM,96 the Full Court contrasted the decision in a spousal maintenance application to the significance of unmet earning capacity in assessing child support obligations and when making a property adjustment order. They conclude that there can be different answers to the same questions as to a respondent’s earning capacity, depending on the head of power the court is exercising. In spousal maintenance cases, the questions posed by ss 72 and 74 as to what is ‘reasonable’ and what is ‘proper’ indicate that the inquiry is not necessarily as to potential capacity, but as to what is reasonable as between estranged spouses in the circumstances.97 10.28 Section 75(2)(b) makes broad reference to ‘the income, property and financial resources’ of each party. Chapter 13 notes the particular significance that this provision has in relation to property distribution, including the wide interpretation of ‘financial resources’ to permit a broad range of assets to be taken [page 684] into account in a realistic way: see 12.25. These include future superannuation entitlements, which are also referred to specifically in s 75(2)(f)(ii). 10.29 A party’s means may include assets lost or gained through a property order. The interrelationship between spousal maintenance and property division is emphasised by s 75(2)(n)

which provides that, in determining a maintenance application, the court must have regard to the terms of any s 79 order made or proposed to be made. It is an error of law to disregard this.98 The relationship between spousal maintenance and property division is discussed in more detail in Chapter 13.

Financial relationships with third parties 10.30 Section 75(2) of the FLA recognises that spouses may have financial responsibilities (imposed or assumed) towards persons other than themselves. Consequently, s 75(2)(d) refers to the ‘commitments … necessary to enable a party to support … a child or another person that the party has a duty to maintain’ (emphasis added). This factor has greater significance in determining the capacity of a payer to provide support than in determining the extent to which the payee requires support.99 The court will determine the capacity of a payer husband, for example, to pay maintenance having regard to his obligation to support his children. The level of support needed by the payee wife, for example, to support herself is not dependent on the level of support she must give to others. In Stein & Stein,100 the Full Court held that it is an error of law to take account under s 75(2)(d) of a payee’s obligation to maintain the children of the marriage. Section 75(2)(e) refers to ‘the responsibilities of either party to support any other person’. It is worth noting the reference to duty in factor (d) which makes it a narrower provision than (e), since duty means legally enforceable duty.101 The current terminology was a deliberate change introduced by the Family Law Amendment Act 1987 (Cth); however, because of the existence of factor (e), a court in considering a claim for spousal maintenance (although not for child maintenance under Pt VII Div 7) can also consider non-enforceable financial obligations assumed towards third parties, such as a de facto partner102 and more [page 685]

distant relatives. In the 1976 case of Marriage of Soblusky,103 the Full Court (Demack, Watson and Fogarty JJ) stated: A court is required under paragraph (e) to consider in a realistic way the fact that a party has assumed a responsibility to support another person, and the weight to be given to that fact depends on the circumstances of each individual case.104

Consequently, no absolute principle of priorities of one family over another applies in relation to spousal maintenance claims. However, in practical reality, the existence of obligations under the Child Support Scheme will in many cases substantially reduce, or even may negate, funds available to meet a spousal maintenance claim. Section 75(2)(na) refers specifically to ‘any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide or might be liable to provide in the future, for a child of the marriage’. 10.31 Under s 75(2)(m), the court must consider ‘if either party is cohabiting with another person — the financial circumstances relating to that cohabitation’. Contrast this provision with s 82(4), which provides that a spousal maintenance order automatically ceases on remarriage, save in special circumstances. Is the difference in policy justified? In the past, a significant consideration was the absence of any support obligation between cohabitants in a de facto relationship; this has now been altered by the commencement of Pt VIIIAB of the FLA, as amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), and the pre-existing state and territory legislation (except in Queensland, South Australia and Victoria) that had applied until 2009: see 10.48–10.50. Factor (m) permits the financial resources brought into the new relationship by a new partner to be taken into account in assessing a claim by a party for support against a former spouse, and potential rather than actual contributions are relevant.105 ‘Cohabitation’ has been held to mean living together as if husband and wife.106 It is unclear from the authorities how

broadly the term ‘cohabitation’ can be construed107 and whether this can include a non-sexual relationship.108 10.32 Section 75(2)(ha) is a more recent factor that was added in 2005109 as part of the reform of bankruptcy and family laws: see 10.21. It requires the court to consider the effect of the proposed spousal maintenance order ‘on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant’. Interestingly, s 75(2) gives no priority to the interests of creditors. Consequently, [page 686] they are simply interests that must be taken into account together with all the other s 75(2) factors.110 Of course, this factor (if applicable) is also relevant to the determination of a property claim and the issue of a married spouse’s future needs, by virtue of s 79(4)(e) of the FLA. This is discussed further in Chapter 13.

Section 75(2)(o) and considerations of conduct 10.33 A most important issue of policy is the extent to which (if at all) considerations of the parties’ conduct should be relevant to financial provision on marriage breakdown (ie in the assessment of entitlement to spousal maintenance and to property division). Section 75(2)(o) requires the court to consider ‘any fact or circumstance which … the justice of the case requires to be taken into account’. After years of settled policy in judicial interpretation of this provision, in relation both to spousal maintenance111 and to property division112 under the FLA, the issue has reopened for debate over the last two decades in the context of an increased focus on violence within the family and its implications for the financial inequality of women within marriage. The relevance in

financial proceedings of considerations of conduct generally and violence in particular are discussed in Chapter 14.

Private and public purses: the relationship between spousal maintenance and social security 10.34 The appropriate respective roles of private and public resources in meeting the costs of family breakdown have been the source of considerable debate, both in political and legal arenas. In particular, the debate has focused on the cost to the taxpayer of unmet parental child support obligations; this led to the creation of the Child Support Scheme by legislation passed in the late 1980s, which is discussed in Chapter 11. Spousal maintenance has also not escaped this debate. From its inception until its amendment in 1987, the FLA simply referred in s 75(2) — as a factor relevant to both spouse and child maintenance (and also to property division) — to: (f) … the eligibility of either party for a pension, allowance or benefit under — (i) any law of the Commonwealth, of a State or Territory or of another country …

How was the provision interpreted? The trend of reported decisions under the FLA prior to 1987 was to express the policy that the taxpayer should not be required to bear an unnecessarily high proportion of responsibility for the economic consequences of family breakdown. Reported decisions under the FLA from 1976 to 1987 emphasised that, except in those cases where means are extremely limited, pension eligibility should not be considered at the threshold [page 687]

stage of determining whether a party is able to maintain themselves adequately (under s 72(1)), but only after prima facie entitlement to maintenance has been established (disregarding the pension entitlement) in the exercise of the court’s jurisdiction under s 74(1). Even then, it should not be considered in such a way as to place an undue burden on the public purse in circumstances where the respondent has sufficient resources to meet their personal obligations. The principal authorities on this approach were Marriage of Kajewski113 in 1978 and F & F114 in 1982. Essentially, s 75(2)(f) was interpreted in those decisions as not permitting a maintenance order to be made merely to ‘top up’ a pension entitlement where adequate resources were available. Nevertheless, reported authorities did not necessarily reflect a universal judicial practice, and disquiet continued. It was widely believed that the practice persisted of making maintenance arrangements and orders which created pension entitlement or increased the quantum received. Moreover, some reported decisions took a different approach, and suggested that it was improper for judges to be overly motivated by a desire to protect the public purse.115 The divergence in the interpretation of s 75(2)(f) was summed up by Harrison, McDonald and Weston in this way: The section has been variously interpreted by different magistrates and judges, with some seeing the pension as the first port of call, while others rely on it only when the resources of the non-custodial parent are insufficient to meet the needs of the custodial parent and children.116

10.35 The matter was soon to be placed beyond doubt by legislative amendment. The Family Law Amendment Act 1987 (Cth) inserted s 75(3) into the principal Act, which provides that a court must disregard any entitlement of the applicant to any income-tested pension, allowance or benefit in determining what order if any to make for spousal maintenance. The receipt of a pension therefore cannot be taken into account in determining whether a payee is unable to adequately support themselves.117 This subsection is one of a number of provisions (including, eg, ss

44(4)(b) and 87(4A)) intended to reduce public expenditure on marriage breakdown.

Spousal maintenance orders Form 10.36 The court has a wide discretion as to the form of order it may make for spousal maintenance. Section 80(1) of the FLA lists the forms of order available [page 688] to a court in proceedings under Pt VIII. Of particular relevance for spousal maintenance are payment of a lump sum,118 payments of a periodical sum119 and transfer or settlement of property.120 A periodical maintenance order may specify payments to be made weekly, monthly or yearly. Such an order is particularly appropriate where either party’s financial circumstances are likely to change in the future, since an application for variation under s 83 can be made from time to time.121 Alternatively, a court may make the order for periodic payments to be made conditional; for example, on the receipt by the liable spouse of specified payments from a third party.122 An order for lump sum maintenance represents the capitalisation of entitlements; that is, the amount of periodic entitlement multiplied by its duration. It may be appropriate when a court concludes on the evidence that periodic payments are unlikely to be paid.123 The nature of lump sum spousal maintenance and the desirability or otherwise of this form of award were discussed in the 1995 case of Marriage of Clauson.124 The Full Court (Barblett DCJ, Fogarty and Mushin JJ) observed: In addition it is necessary to determine the issue of periodic maintenance first because this type of lump sum maintenance is the capitalisation of that conclusion. The court must satisfy itself of the components necessary to justify a periodic maintenance order, namely, in effect, need and capacity, and determine the

amount in question and in some cases the duration of that order. If the applicant fails to establish those components that will end any claim for not only periodic maintenance but lump sum maintenance as well. Here the wife’s claim for lump sum maintenance … was conducted as if it were a free-standing claim quite independent of the question of any entitlement to periodic maintenance … … [T]he power to make a maintenance order is to be found in s 74. As s 80(1) makes clear, the court in exercising that power, can do so in a number of ways, including by a periodic order or a lump sum order. Periodic maintenance should be considered before lump sum maintenance. The central power is to order maintenance; that power may be exercised in different ways. A claim for lump sum maintenance is not a claim to the exercise of a separate head of power; it is a claim for maintenance which may be satisfied by a periodic order or by a lump sum order; see Davidson (1994) 17 Fam LR 656; [1994] FLC 92-469. This type of lump sum maintenance is not a separate entity. It 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

[page 689] payment. The power to capitalise periodic spousal maintenance is a power to be exercised cautiously for reasons referred to by his Honour in the passage cited above125 … In particular, uncertainty about future events explains this approach, and capitalisation of maintenance would rarely be justified where there was no genuine concern about the capacity and preparedness of the payer to comply regularly with a periodic order. (original emphasis)126

Arguably, this decision represented a conscious judicial reaction against lump sum spousal maintenance and a corresponding favouring of periodic awards; the latter being consistent with the approach to child support. Doubts have been expressed about the correctness of what the Full Court said in Clauson about the power to award lump sum maintenance.127 To some extent, the argument that awards of lump sum maintenance are so limited was short-lived in any event, given subsequent comments by the Full Court in 1998 in Vautin v Vautin128 and more recently in Brown v Brown.129 Both cases are discussed below. Brown involved a successful application for lump sum spousal maintenance, albeit one that was reduced from $3.75 million to

$2.25 million on appeal). One of the reasons why the lump sum was reduced on appeal was that the Full Court (Kay, Warnick and Boland JJ) held that the trial judge (O’Ryan J) had not made it clear in his judgment whether any part of the lump sum he awarded included ‘a sum arrived at by a capitalisation process’.130 The Full Court went on to comment that: A capitalisation of the wife’s net annual needs for a term of years (selected with regard to joint life expectancy and the exigencies of life) is a relatively straightforward exercise. In the absence of that exercise, we do not know, nor does the husband know, or for that matter the wife, for how long the learned trial judge thought it appropriate the husband maintain the wife, albeit by one lump sum payment.131

Lump sum awards may appear more in accord with the policy of s 81 of the FLA, which requires a court in proceedings under Pt VIII to ‘as far as practicable, make such orders as will finally determine the financial relationship between the parties … and avoid further proceedings between them’. However, this so-called [page 690] ‘clean break’ principle has been held not to override the substantive provisions of ss 72, 74 and 75.132 In the 1993 case of Bevan & Bevan,133 the Full Court commented with respect to s 81 that ‘the expression of legislative policy which it contains must give way to the requirement of s 74, that the court is to make such order as it considers proper once the threshold tests of s 72 are overcome’.134 In Vautin,135 the wife was successful in obtaining a substantial lump sum maintenance order nearly eight years after a property and maintenance settlement with her former husband. Her claim included moneys needed for the replacement of white goods, blinds and furnishings, the cost of a new motor vehicle, renovations to her existing home (or the purchase of a new home) and a lump sum for future vicissitudes of life expenditure for both

her and the two youngest children. In their judgment, Fogarty and Burton JJ commented: It has been pointed out on a number of occasions in this court that in the exercise of the power to order lump sum maintenance caution is usually appropriate because of the apparent finality of lump sum orders and the difficulties in making predictions into the future. However, it is a power, the exercise of which may be appropriate in particular cases. It may be ordered, amongst other reasons, to meet non-periodic expenditure for the maintenance of that person where there is an established need and a capacity to pay. It is not confined to cases of the capitalisation of periodic maintenance and/or where periodic maintenance is unlikely to be paid because of concerns about the capacity or willingness of the liable parent to pay … or to cases where the need for or the capacity to pay periodic maintenance is demonstrated.136

Where a court in spousal maintenance proceedings makes an order for a lump sum payment or for property transfer, it is required to specify that the order or a proportion of it represents an award for spousal maintenance.137 While the reported cases offer little assistance as to the true meaning and operation of s 77A (as was noted by the Full Court in Caska v Caska),138 it is suggested that the primary purpose of the specification requirement is to enable income testing for social security purposes of maintenance received other than by way of periodic payments. Like other provisions intended to reduce public expenditure, it was inserted by the Family Law Amendment Act 1987 (Cth). However, the specification [page 691] requirement does not apply to the s 75(2) component of a s 79 property order.139 The relationship between spousal maintenance and the s 75(2) component in a property order under s 79 is discussed in Chapter 13.

Modification 10.37

Section 83(2) of the FLA sets out the circumstances in

which a maintenance order may be modified on application. Section 83 goes beyond mere variation. It confers a power to discharge or suspend an order, or to revive a suspended order. The order may be varied by increasing or decreasing the amount, ‘or in any other manner’. It is well settled that the provisions of s 83(2) establish threshold requirements to the determination of whether to vary or discharge a previously made order for spousal maintenance.140 The criteria set out in s 83(2) mostly relate to changed circumstances of one kind or another, while the broad s 83(2)(ba) relates simply to the inadequacy of the amount in a consent order, and s 83(2)(c) to false evidence or on the withholding of material facts. The listed matters are in the alternative. In Caska v Caska141 (see 10.36), the Full Court held that s 83(2) (ba) simply provides an additional ground that may be relied on when seeking a maintenance variation to an order previously made by consent, and is not a prerequisite for a variation of the order.142 Among changed circumstances, specific mention is made in the legislation of changes in the cost of living since the order was made or last varied. This is further elaborated in s 83(4), which directs the court to consult the Consumer Price Index (CPI) published by the Australian Statistician, although no such variation may be made if less than 12 months has elapsed since the making or last variation of the order.143 An annual adjustment in accordance with the CPI could, of course, be included in the order (and usually is). Variation of maintenance orders are also subject to the considerations relevant to the original making of the order,144 which of course refers the court back to the s 75(2) factors. In a later appeal involving the same parties as in Caska,145 the Full Court (Lindenmayer, Holden and Watt JJ agreeing) considered that while s 83 provides for lump sum maintenance orders to be varied, there is an issue as to whether a completed or executed lump sum maintenance order was ‘in force’ in accordance with

the terms of s 83; and, if the order had been complied with, then it would [page 692] no longer be capable of variation under the section. After considering a number of cases,146 and in particular the 1992 case of Collins & Collins,147 Lindenmayer J stated: After considering all these cases, I find it difficult to see how it can be concluded that s 83(1) empowers the court to vary a lump sum maintenance order which has been fully complied with, and still give any meaning and operation to the words ‘in force’ in that subsection. None of these cases compel that conclusion, and the more persuasive dicta (in Collins, above) is to the contrary.148

The court is not required to fix a cessation date of an order for the payment of periodic spousal maintenance and an order can be made to operate for an indefinite period in the knowledge that s 83 of the Act provides for variation or discharge of the order.149 Section 80(2) provides that the making of an order for the maintenance of a party to a marriage does not prevent a court from making a subsequent order for maintenance of that party. Accordingly, a spouse who has made a lump sum payment or periodic payments pursuant to a maintenance order can be ordered to pay further maintenance.150

Duration 10.38 Under s 82 of the FLA, a spousal maintenance order ceases to operate in certain listed circumstances:151 on the death of the recipient; on the death of the payer (if the order was made after 25 September 1983);152 and on the remarriage of the recipient, unless the court orders otherwise in special circumstances. In the 1992 case of Evans & Spicer,153 it was held that s 82 does not apply where an order for lump sum maintenance is made and has been

paid prior to remarriage, even though the order was expressed as a weekly sum for 15 years.154 [page 693]

Enforcement 10.39 Steps to enforce spousal maintenance orders may be taken either under the FLA and the Family Law Rules 2004 (Cth) (FLR) Ch 20, or under the child support legislation. Section 105 of the FLA, which confers a general power of enforcement, is discretionary and the court may refuse to enforce one of its own orders.155 In exercising that discretion the court will consider whether circumstances have arisen that make it inequitable to enforce the original order.156 The court’s discretion is not limited by equitable doctrines; rather, the discretion is to be exercised after consideration of the relevant facts and circumstances in the context of the legislative scheme, and founded on conduct or events that occurred after the orders were made.157 The FLR provide for enforcement by third party debt notice, including: (a) money deposited in a financial institution that is payable to a payer on call or on notice; (b) money payable to a payer by a third party on the date when the enforcement order is served on the third party; and (c) earnings payable to a payer,158 seizure and sale of personal property, and sequestration of estate and sale of real property. Part XIIIA of the FLA contains sanctions of general application for serious failure to comply with court orders, and Pt XIIIB provides for contempt of court. The collection provisions of the Child Support (Registration and Collection) Act 1988 (Cth) also extend to spousal maintenance orders or registered agreements, creating a system of automatic deductions.

The future of spousal maintenance

10.40 Spousal maintenance orders made on an urgent or interim basis pending the finalisation of property proceedings between the parties are not uncommon. However, spousal maintenance orders on a final basis remain relatively rare in Australia, and both contested or agreed awards are likely to remain a statistical abnormality.159 It has been suggested that the latter is partly due to the emphasis on property division in the process of financial adjustment, and partly due to the effect of child support obligations, which may reduce the ability of a respondent to pay the applicant spousal maintenance.160 The Australian Law Reform Commission, in its 1987 report Matrimonial Property, noted that spousal maintenance applications [page 694] were rare161 and recommended no change to spousal maintenance principles in the Act.162 In spite of the fact that the Family Court has taken the view in its decisions since the mid-1990s that that spousal maintenance is not just important on a temporary basis — in particular, viewing spousal maintenance as compensation for economic disadvantage163 (see 10.24) — there is little evidence of a growing practice in the use of orders in this way. In addition to the factors identified in the previous paragraph, ss 72, 74 and 75(2) in combination contain elements of the differing considerations of expectation, contribution, rehabilitation and custodial maintenance, which are difficult to reconcile from a policy perspective. The court is vested with a very wide discretion and the relevance given to the various statutory factors varies inevitably from case to case according to the particular facts. As a result, outcomes are highly unpredictable, which may itself discourage applications under s 72. The highly discretionary nature of the spousal maintenance jurisdiction contrasts strongly with the application of a fixed formula in the Child Support

Scheme, where judicial disposition administrative determination.

has

been

replaced

by

10.41 The writings of academic commentators reveal a variety of alternative conceptual models for spousal maintenance. Eloquent advocates of a rehabilitative model include Gray,164 Glendon165 and Deech.166 Lady Deech’s particular model of rehabilitative maintenance is a restrictive one, to be awarded for a limited period only to those unable to work because of responsibilities to children or ill health. 10.42 The debate over the future of spousal maintenance can be viewed in the broader context of the appropriate role of private law in redressing social and economic inequalities between men and women. According to Diduck and Orton: While the ultimate goal for many feminists may be to abolish maintenance altogether, such a move must occur only when there is no need for support and not be made merely as a concession to the rhetoric of formal sex equality. In order to abolish need, however, we must restructure fundamentally the relationship between state, family and work.167

O’Donovan has argued that it would be unjust to abolish spousal maintenance until the wider inequalities of role division within marriage, the employment [page 695] market, taxation and social security provision, and financial and other responsibilities for children have been remedied.168 Diduck and Orton have argued not for the abolition of spousal maintenance, but for the reform of family law as one strategy for redressing inequalities between women and men: Even if one takes a different view and one’s goal is not to abolish maintenance entirely, but rather to abolish the systemic economic and social disadvantage for women associated with a systemic gender based division of labour within marriage, similar fundamental changes in the social structure would be necessary. Along with

true equity in employment and pay and affordable good quality child care, an adequate valuation of domestic work would mean it would not be necessary that each partner play exactly the same role in wage earning as O’Donovan envisions. Roles in marriage could be adopted based on the partners’ actual interests and skills. Maintenance on divorce would still sometimes be necessary, then, but it would no longer overwhelmingly be women who required it and it would not result in economic disadvantage for the recipient. Maintenance would be seen as a right, expected and earned, rather than as a gift, act of benevolence … or based on a notion of women’s dependency on men. It might be argued, then, however one phrases one’s goal, that engaging with spousal support law in its current context is counterproductive to women’s concerns and furthers an ideology of female dependency. We would suggest, however, that while we are sympathetic to this notion, ‘private’ family law reform remains an important feminist strategy. As feminists we have two goals: ultimately to transform, but in the short term, to reform social relations. As Eichler suggests, arguing for systematic change does not mean we should continue to tolerate unfairness in the allocation of family resources on separation and divorce … Law must deal with the society it has helped to create and play its part in shaping ideologies it helps to support. In the short term then, thousands of women do enter into and leave the status based contract of marriage, with all of its ideological baggage, and support law must play its part in alleviating their poverty, while at the same time taking care to avoid exclusively privatising the problem. Further, a feminist approach to support law which recognises and rejects the categories ‘public’ and ‘private’ must also reject traditional categories of not only ‘husband’ and ‘wife’, but also such fixed categories as the ‘legal’, the ‘political’ or the ‘social’. (original emphasis)169

[page 696] 10.43 What is the state of the social, economic and legal infrastructure in contemporary Australia which is the backdrop against which future reform of spousal maintenance must be considered? Negative considerations are a difficult employment market and reduced expenditure on social security, both of which impact disproportionately on women;170 but it may be asserted that the establishment of the Child Support Scheme has reduced (although not eliminated) inequalities in parental financial responsibilities for children. However, the economic inequalities between spouses created by

marriage are far wider than those capable of remedy merely by child support payments. In Canada, spousal maintenance has experienced a revival since the 1993 decision of the Supreme Court of Canada in Moge v Moge; Women’s Legal Education and Action Fund (Intervener).171 In that case, the court awarded maintenance to a woman who was capable of self-support after divorce, essentially to compensate her for the economic disadvantages she had incurred during the marriage due to her role as family carer and parent. L’Heureux-Dubé J stated, ‘[i]n Canada, the feminisation of poverty is an entrenched social phenomenon’.172 The basis of the Supreme Court’s approach is to regard an award of spousal maintenance as a means of equalising between former spouses the economic consequence of marriage and its breakdown. In discussing this case, Nygh explained: The court noted the reduced earning capacity experienced by many women in the long term as a result of interruptions in workforce participation due to child-rearing responsibilities, and observed also that these sacrifices sometimes embellished the earning capacity of the other spouse. L’Heureaux-Dubé J, for the majority, regarded it as a goal of the spousal support provisions in Canadian law that the parties should share equitably in the economic consequences of the marriage or its breakdown. In calculating the economic disadvantages of the applicant which have resulted from the role division within the marriage, the court could consider such matters as loss of future earning power, loss of seniority, missed promotions, lack of access to fringe benefits such as pension plans, the effects of having outdated educational qualifications, and restrictions on availability for employment and mobility due to continuing child-rearing. She stated that great disparities in the standard of living of the parties following separation would be indicative of that economic disadvantage. The longer the

[page 697] marriage lasted, and the closer the economic union, the greater would be the presumptive claim to equal standards of living upon dissolution.173

In Miller v Miller; McFarlane v McFarlane174 the House of Lords recognised the compensatory nature of maintenance within the context of a property re-adjustment. According to Lord Nicholls of Birkenhead, the law is:

… aimed at redressing any significant prospective economic disparity between the parties arising from the way they conducted their marriage. For instance, the parties may have arranged their affairs in a way which has greatly advantaged the husband in terms of his earning capacity but left the wife severely handicapped so far as her own earning capacity is concerned. Then the wife suffers a double loss: a diminution in her earning capacity and the loss of a share in her husband’s enhanced income. This is often the case. Although less marked than in the past, women may still suffer a disproportionate financial loss on the breakdown of a marriage because of their traditional role as home-maker and child-carer.175

10.44 What will be the future of spousal maintenance in Australia? In 1989, the Family Law Council set out a range of possible options for the future of spousal maintenance in Australia.176 Responses to the Family Law Council’s paper revealed ‘little general call for the reform of the spousal maintenance provisions of the Family Law Act’.177 It appears unlikely at this stage that spousal maintenance orders, other than on an urgent or interim basis, will assume greater practical significance than at present due to the emphasis on child support and on property division, unless the philosophy of Moge v Moge178 (see 10.43) at some future date is specifically adopted in Australia. It is unlikely that there will be significant changes in the use of spousal maintenance without changes in legislation and policy beyond the FLA. Behrens and Smyth report that data gathered in a study conducted in 1997 provides empirical support for the proposition that spousal support issues are fundamentally gender issues.179 The study showed that those who receive spousal support are almost [page 698] always women, and those who pay it almost always men. Further, it showed that women are more likely to support the existence of spousal support obligations than are men. They conclude: These findings provide an indication that decisions about reform and policy in this area hold important implications for women’s equality before the law. On the one

hand, as indicated in the recent case law, the payment of spousal support is one limited mechanism through which to address women’s economic disadvantage on marriage breakdown. If, as this study finds, such obligations are created only rarely, then redressing that disadvantage depends upon changing those patterns of payment and/or looking to other broader strategies (including social security and taxation reform).180

10.45 Will judges of the Family Court of Australia take upon themselves the promotion, even within existing provisions of the FLA, of an increased role for spousal maintenance as a vehicle for equalising between men and women the economic consequences of marriage and its breakdown? In the past, the law has been criticised for conscious or unconscious gender bias in its operation.181 There is evidence of an increasing judicial awareness of feminist issues, as seen in the Full Court’s 1995 decision in Mitchell v Mitchell:182 see 10.24. There is other evidence of the Family Court’s willingness to use the Act’s existing provisions to take fuller account of economic disparities created by marriage.183 Also significant is the development by the Family Court of a jurisprudence that gives recognition in financial adjustment to the negative effects of family violence, while avoiding a reintroduction of considerations of matrimonial fault generally.184 These are signs of a distinctive contribution by the Family Court to the promotion of women’s equality in family law. [page 699]

Support of de facto partners Introduction 10.46 One of the most fundamental (and controversial) issues in contemporary family law has been the extent to which the legal consequences of the breakdown of a de facto relationship should mirror those attaching to marriage breakdown. In a pluralist

society, the law must recognise and support diversity in family formation. Yet where is the balance to be struck between individuals’ rights to self-determination and legal paternalism? It can be argued that diversity requires individuals to be free to attach legal consequences of their choice to relationships of their choice. However, a functionalist analysis reveals at least two roles of family law requiring a general regime not based on individual determination. In its protective role, the law prevents exploitation of one family member by the other, especially where there is a power imbalance in the relationship. Not only children need protection: an adult partner may be vulnerable to exploitation, be it emotional, physical or financial. In its remedial role, once a relationship has broken down, the law aims to resolve the parties’ rights and obligations with fairness and in a manner that minimises hostility. This aspect is further considered in Chapter 12 in the context of property division.185 10.47 Until 2009, the law of maintenance in Australia revealed a continuing distinction between the law’s treatment of marriage on the one hand and unmarried cohabitation on the other. No duty to maintain a de facto partner exists under common law, although New South Wales, Tasmania and the two territories created statutory maintenance obligations that existed until the commencement of Pt VIIIAB of the FLA (as amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)). In those jurisdictions where a maintenance obligation between de facto partners had been created, it was (on the face of the statute at least) different in nature — and seemingly even more limited — than that arising under s 72 of the FLA, and now under s 90SF of the FLA. Western Australia also introduced maintenance rights in amendments to the Family Court Act 1997 (WA) in 2002 that mirror those under s 72 of the FLA. As Western Australia has not comprehensively referred its powers over de facto relationships to

the Commonwealth (see 4.92), Pt VIIIAB of the FLA is not applicable in that jurisdiction and state law applies. Prior to the enactment of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), the policy of statutory reforms over the past three decades appeared to follow that recommended by the New South Wales Law Reform Commission in its Report 36, De Facto Relationships in 1983, in which it rejected the equation of de facto relationships with marriage, either [page 700] wholesale or for certain purposes.186 The Commission subsequently changed its view in its later Report 113, Relationships in 2006 and recommended that the limited maintenance rights then available under the Property (Relationships) Act 1984 (NSW) be expanded to mirror those available for married couples under the FLA and for de facto couples under the Family Court Act 1997 (WA).187

Statutory maintenance entitlements prior to the commencement of Pt VIIIAB in 2009 10.48 The pre-existing state and territory legislation in most jurisdictions conferred on their courts the power to make maintenance orders in limited circumstances, between parties to a de facto relationship.188 The exceptions are Queensland and South Australia, whose current legislative regimes are each confined to property adjustment only. As mentioned in 10.47, Pt VIIIAB of the FLA does not apply in Western Australia. In addition, in those jurisdictions that have extended statutory rights to other (non-de facto) close personal relationships (the Australian Capital Territory, New South Wales, South Australia and Tasmania), the

relevant laws will continue in operation as such relationships are not covered under the new provisions contained in Pt VIIIAB. 10.49 Each of the relevant statutes (except those in Victoria and Western Australia) expressly denies a general right to maintenance arising from an unmarried relationship: Except as otherwise provided in this Division, a de facto partner is not liable to maintain the other de facto partner and a de facto partner is not entitled to claim maintenance from the other de facto partner.189

Nevertheless, each goes on to define the circumstances in which the court can make an order. For example, s 26(1) of the De Facto Relationships Act 1991 (NT) provides that: A court may make an order for periodic or other maintenance if it is satisfied as to either or both the following:

[page 701] (a) that the partner applying for the order is unable to support himself or herself adequately because of having the care and control of a child of the de facto partners, or a child of the other partner, who has not attained the age of 18 years on the day on which the application is made; (b) that the partner is unable to support himself or herself adequately because the partner’s earning capacity has been adversely affected by the circumstances of the relationship and, in the opinion of the court: (i) an order for maintenance would increase the partner’s earning capacity by enabling the partner to undertake a course or program of training or education; and (ii) it is reasonable to make the order, having regard to all the circumstances of the case.

Similar provisions are found in the Property (Relationships) Act 1984 in New South Wales and the Domestic Relationships Act 1994 in the Australian Capital Territory.190 By contrast, the Western Australian, Tasmanian and Victorian statutes are broader in scope. Section 205ZC of the Family Court Act 1997 in Western Australia mirrors the conditional right to maintenance found in s

72 of the FLA. Section 47(1) of the Relationships Act 2003 in Tasmania provides that: On an application by a partner for an order for maintenance, a 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 personal relationship; or (b) of any other reasons arising in whole or in part from the circumstances of the personal relationship.

Section 51 of the Relationships Act 2008 (Vic) is similarly worded. In Chilcott v Freeman,191 the court was required to determine whether leave to make an application for maintenance out of time under s 38(2) of the Relationships Act 2003 (Tas) ought to be granted. In granting leave to apply, Tennent J considered it arguable that the test to be applied under s 38(2) is more extensive than under the FLA. Section 44(4) of the FLA prohibits a court from granting leave unless it is satisfied that there would be hardship to the applicant. In contrast, his Honour concluded, s 38(2): … does not require a court to be satisfied simply that there would be hardship to the applicant. It presupposes that there may be hardship to a respondent if leave were granted, and requires the court firstly, to find that there would be hardship

[page 702] to the applicant if leave were not granted, and secondly, to find that that hardship would be greater than any flowing to the respondent if leave were granted.192

Once the threshold requirements are met, the relevant courts are directed to take account of a range of factors: parties’ needs and means; responsibilities to others including child support; and any property order.193 The Western Australian provision (s 205ZD(3)) mirrors s 75(2) of the FLA, and both the Tasmanian provision (s 47(2)) and the Victorian provision (s 51(2)) are substantially similar. The ‘clean break’ principle is represented in

the Australian Capital Territory (s 22), New South Wales (s 30) and the Northern Territory (s 32) by the time limits that curtail an award for periodic maintenance. In the 1993 case of Parker v Parker,194 the Supreme Court of New South Wales (Young J) interpreted the relevant provision as a clear indication of legislative intention to establish a cut-off point for maintenance.195 There is little reported case law on the operation of the preexisting state and territory legislation in permitting maintenance orders to be made on the breakdown of a de facto relationship.196 One may speculate whether this indicates that the provisions are not being used, or that in light of the statutory provisions, agreements are made informally without recourse to litigation, or that decisions go unreported. However, one construction must be that orders for maintenance outside of marriage are even less common than those for spousal maintenance. In Parker v Parker (above), a female commenced a relationship with a male (then 41 years old) when she was just 22 years old, and thereafter she never worked in paid employment. The relationship lasted seven years, during which the parties enjoyed a high standard of living due to the man’s successful businesses. Two children were born. The female partner obtained an order for adjustment of property, but her application for maintenance was dismissed. The youngest child was over 12 years of age (and hence s 27(1)(a) of the New South Wales Act was not available) and Young J held that the woman had not made out a case under s 27(1)(b). His Honour commented that: The general policy of the Act seems to be … that women with children over 12 years should be in paid employment and after breakdown of a relationship, they should be given a four-year deadline to train for re-entry … In this case the plaintiff has endeavoured to put forward evidence that she had a promising career before she entered the relationship. I am not at all satisfied on this … it seems to me that we have here simply the case of a woman who left school

[page 703]

at 14, trained in a course which has now been overtaken by technology, and that her inability (apart from the children factor) to earn an income to keep up her lifestyle has nothing to do with entering the relationship.197

Note here the judicial emphasis on the lack of evidence that the relationship itself had created the woman’s inability to support herself adequately. 10.50 Last, there is some divergence of approach in the preexisting state and territory legislation as to the question of the relationship between personal obligation and social security. As previously discussed, in 1987 changes to the FLA resulted in social security entitlements being disregarded when considering the entitlement to, and the quantum of, spousal maintenance: see 10.35.198 This provision is now mirrored in most of the relevant jurisdictions;199 however, s 27(3) of the Property (Relationships) Act 1984 (NSW) requires that, in making an order for maintenance, a court shall ensure that the terms of the order will, so far as is practicable, preserve any entitlement of the applicant to a pension, allowance or benefit. Section 19(3) of the Domestic Relationships Act 1994 (ACT) is in almost identical terms. The policy adopted in the Australian Capital Territory and New South Wales is that parties to informal relationships should rely on private law maintenance only to the extent that social security is inadequate. Such a policy difference appears outdated and difficult to justify.

Statutory maintenance entitlements after the commencement of Pt VIIIAB 10.51 As detailed in Chapter 5, Pt VIIIAB of the FLA (as amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)) commenced on 1 March 2009. Not surprisingly, the main aim of the amendments was to extend the financial settlement regime available to married couples under the FLA, to parties in a de facto relationship.200 In

many respects, the provisions in Pt VIIIAB mirror Pt VIII of the FLA so far as constitutional limits allow. The changes also reflect the pre-existing state and territory laws in relation to threshold issues and relevant time limits. According to Harland, the advantages for de facto couples are obvious: Both same-sex and opposite-sex de facto couples will be able to access the family law system when their relationships break down. Instead of having to

[page 704] commence proceedings in two courts where there are parenting and property disputes they will be able to commence proceedings in one court. A further advantage is that they will be able to access specialist courts with a wealth of experience in dealing with financial aspects of relationship breakdown.201

Threshold issues and time limits 10.52 In order to be eligible to make an application, the applicant must have been in a de facto relationship that has lasted at least two years unless the parties have a child, or the applicant made a substantial contribution to the relationship, or the relationship is or was registered in a relevant state or territory.202 The applicant must also apply for financial orders within two years of the breakdown of the relationship,203 although leave may be granted to apply outside this standard application time.204 It is worth noting that as the constitutional reference of powers was only in relation to the breakdown of de facto relationships, a de facto partner is not able to apply for maintenance during a de facto relationship, in contrast to a married partner.205 Consequently, the FLA is only applicable to de facto relationships that broke down on or after 1 March 2009, unless the parties choose for the FLA to apply in accordance with specified requirements.206 In Vine v Carey,207 Slack FM was required to determine as a threshold question whether a de facto relationship had broken

down prior to 1 March 2009. In considering the meaning of ‘breakdown’, his Honour held: It is in the nature of relationships that they tend to breakdown over time. I consider though that the term breakdown in the context of the Act and having regard to the referral of powers by participating States, should be interpreted such that the Court, before exercising power under the Act, should be satisfied, according to the requisite standard of proof (the balance of probabilities), that the de facto relationship had broken down to the point that it had failed and had ended.208

[page 705] In respect of the factors that should exist in order for a court to be satisfied that the relationship has failed or ended, his Honour held that the principles enunciated by Dutney J in S v B209 (concerning an application under Pt 19 of the Property Law Act 1974 (Qld)) apply to a determination of that question under Pt VIIIAB of the FLA.210 This issue is further considered in Chapter 6. 10.53 Once the court is satisfied that it has jurisdiction, under s 90SF(1) of the FLA it must apply: … the principle that a party to a de facto relationship must maintain the other party to the de facto relationship: (a) only to the extent that the first-mentioned party is reasonably able to do so; and (b) only if the second-mentioned party is unable to support himself or herself adequately whether: (i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or (ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or (iii) for any other adequate reason.

10.54 Close personal relationships are not covered by the provisions in Pt VIIIAB.211 As Harland has observed, this may cause some concern for lawyers, as it has become more common

to see both types of relationship pleaded in the alternative in New South Wales cases (ie that the parties lived in a de facto relationship for some portion of the time and a close personal relationship for another portion of the time).212 For example, in Sharpless v McKibbin213 the New [page 706] South Wales Supreme Court (Brereton J) accepted this argument. In any event, as Harland observes, close personal relationships are somewhat different in nature to de facto relationships: Close personal relationships involve two elements: domestic support (without reward or a fee) and personal care. Domestic support will typically include various homemaking tasks such as shopping, washing, cooking and cleaning. The element of personal care is much more intimate and includes assisting with personal hygiene, dressing and undressing, eating, washing and so on.214 The element of personal care is not easily satisfied. Taking someone to their doctor’s appointments and keeping them company is not enough.215

Geographical requirements 10.55 Either or both de facto partners must be ordinarily resident in a participating jurisdiction when the application is made and one or both of them must have been ordinarily resident for at least one-third of the relationship or have made a substantial contribution to the relationship.216 South Australia originally did not and Western Australia is yet to comprehensively refer their powers with respect to financial aspects of de facto relationships to the Commonwealth: see 4.92. For this reason, the FLA refers to non-referring and participating states. The provisions were drafted in such a way to allow for states like South Australia and Western Australia to refer their relevant powers at some future date.217 South Australia subsequently referred its powers over de facto financial matters to the Commonwealth218 and became a participating state.

[page 707]

The court’s power under s 90SE and the s 90SF(3) factors 10.56 Once the threshold matters have been satisfied, s 90SE(1) of the FLA empowers the court to make ‘such order as it considers proper for the maintenance of one of the parties to the de facto relationship’. As with the mirror provisions applicable to married couples (ie ss 72(1) and 75(2)), the court must take into account only the list of factors set out in s 90SF(3):219 (a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has

contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

[page 708] (l) the need to protect a party who wishes to continue that party’s role as a parent; and (m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under s 90SM in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to: (i) a party to the subject de facto relationship (in relation to another de facto relationship); or (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is a party to a marriage with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a subparagraph (i) or (ii); and (q) any child support under the Child Support (Assessment) to the subject de facto relationship has provided, is to liable to provide in the future, for a child of the subject and

person covered by Act 1989 that a party provide, or might be de facto relationship;

(r) any fact or circumstance which, in the opinion of the court, the justice of the

case requires to be taken into account; and (s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and (t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.

10.57 As with the applicable law for married couples, the interrelationship between maintenance and property division is emphasised by s 90SF(3)(o), which provides that in determining a maintenance application, the court must have regard to the terms of any property order made or proposed to be made under Pt VIIIAB and s 90SF(3)(p), which concerns orders under Pt VIII. Moreover, s 90SF(3)(s) [page 709] and (t) respectively require the court to consider the terms of any binding financial agreement made pursuant to Pt VIIIAB of the FLA (ss 90UA–90UN) and the terms of any financial agreement that is binding on a party to the de facto relationship. The relationship between spousal maintenance and property division, and the use of financial agreements generally, are discussed in more detail in Chapter 15. 10.58 Not surprisingly, there is also a provision, namely s 90SF(4), that mirrors s 75(3) of the FLA: In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

In addition, there are provisions with respect to urgent maintenance applications (s 90SG) and the specification of orders (s 90SH) that mirror ss 77 and 77A of the FLA.

Modification and cessation of de facto relationship maintenance order

10.59 Section 90SI of the FLA (like its mirror provision s 83) sets out the circumstances in which a maintenance order applicable to a de facto couple may be modified. This includes the power to discharge or suspend an order, or to revive a suspended order. Variation may be by increasing or decreasing the amount, ‘or in any other manner’. The criteria set out in s 90SI(3) mostly relate to changed circumstances of one kind or another, while the broad s 90SI(3)(c) relates simply to inadequacy of amount in a consent order, and s 90SI(3)(d) to the withholding of material facts or the giving of false evidence. The listed matters are in the alternative. Variation of maintenance orders are subject also to the considerations relevant to the original making of the order,220 which of course refers the court back to the s 90SF(3) factors. 10.60 Under s 90SJ(1), a de facto relationship maintenance order ceases to have effect from the death of either party, and under s 90SJ(2) on the marriage of the party receiving the maintenance (unless special circumstances exist). Interestingly, the maintenance order does not cease automatically on the beneficial party entering into a new de facto relationship, as distinct from a marriage. No doubt this simply reflects the practical difficulties that arise in determining that a new de facto relationship has commenced (see further, 5.91); however, one would expect that the existence of a new de facto relationship would be a very strong basis for an application to terminate an order for de facto maintenance. [page 710]

Enforcement 10.61 Steps to enforce de facto relationship maintenance orders may be taken either under the FLA and the FLR, or under the child

support legislation. For a discussion of enforcement provisions, see 10.39.

Child-bearing expenses 10.62 The FLA creates a liability for the father to contribute to the mother’s child-bearing expenses provided he is not married to the mother (otherwise spousal maintenance would be applicable).221 If the mother and father were in a de facto relationship, there is potential for maintenance to be available but only if the relationship has broken down and if the terms of ss 90SE and 90SF are satisfied. Section 67B allows the birth mother to seek contribution for her reasonable birth-related medical expenses (including reasonable funeral expenses should the child be stillborn), and permits the mother’s estate to claim any reasonable funeral expenses from the father if the mother’s death resulted from her pregnancy or the birth of the child. The section also allows the birth mother to claim ‘maintenance’ from the father for what the Act defines in s 4(1) as the ‘childbirth maintenance period’. Section 67B is constitutionally possible due to a reference of powers by the states.222 The relevant FLA provisions relating to childbirth expenses have no application in Western Australia, but identical provisions are found in Pt 5 Div 8 (ss 133–141) of the Family Court Act 1997 (WA). Proceedings for birth-related expenses can be made at any time during the mother’s 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.223 Under s 67D(1), the court has the power to make a birth-related expenses order ‘as it thinks proper’, and the types of orders it can make are set out in s 67D(2) (a)–(j). These types of orders are not dissimilar to the powers in ss 66P(1) (for child maintenance) and 80(1) (for spousal maintenance). In determining what contribution the father of the child should make, the court must take into account the financial

circumstances of the mother and the father of the child224 and their financial commitments,225 and any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.226 [page 711] As with spousal maintenance, the court is also obliged to take into account a party’s capacity to earn and derive income, but to specifically disregard the birth mother’s entitlement to an incometested pension, allowance or benefit.227 If the court is satisfied that the birth 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.228 10.63 The practical relevance of these provisions as a means of support for a new mother can be expected to be lessened by the introduction of the Federal Government’s Newborn Upfront Payment and Newborn Supplement.229 These benefits, effective from 1 March 2014, replace the Baby Bonus payments for new parents available since 1 July 2004 and revised on 1 July 2011. The Newborn benefits are non-taxable payments from the Department of Human Services for eligible new parents caring for a child less than one year old.230 The Newborn Upfront Payment and Newborn Supplement payment rates are considerably less than the Baby Bonus rates. (From 1 July 2011, a person who was eligible to receive the baby bonus would receive a first instalment of $879.77 and 12 fortnightly instalments of approximately $379.77.) The Newborn Upfront Payment is a lump sum of $523. The payment rate for Newborn Supplement depends on a family’s income and how many children they have. Eligible recipients will

receive for up to 13 weeks a maximum of $1568.84 for a first child and a maximum of $523 for other children. Whether any amount is payable and how much is determined by eligibility for Family Tax Benefit Part A.231 Eligibility to receive the Newborn Supplement is means-tested and it is not available to a person receiving Parental Leave Pay for the child.232 Parental Leave Pay is financial support for up to 18 weeks to help eligible parents take time off work to care for a newborn or recently adopted child.233 The consequence of the Newborn Supplement being means-tested is that the payment must be disregarded pursuant to s 67C(3). [page 712] Last, a liability for birth-related expenses may be relevant in a child support dispute where a party is seeking a change to an administrative assessment made under the Child Support (Assessment) Act 1989 (Cth). Under s 117(2)(a) of this Act, a father may argue that his capacity to pay child support is reduced because he has ‘a legal duty to maintain another person or other children not included in the child support assessment’ (ie the mother of his unborn child).234 1.

L Young and N Wikeley, ‘“Earning Capacity” and Maintenance in Anglo-Australian Family Law: Different Paths, Same Destination?’ (2015) 27 Child and Family Law Quarterly 129, esp fn 85.

2. 3.

See Family Law Act 1975 (Cth) s 75(2). See, for example, Neale & Neale (1991) 14 Fam LR 861 at 867; FLC ¶92-242; Marriage of Clauson (1995) 18 Fam LR 693 at 712; FLC ¶92-595.

4.

Marriage of Bevan (1993) 19 Fam LR 35; FLC ¶92-600. For a discussion of the UK position on the ‘clean break’ principle, see Miller v Miller; McFarlane v McFarlane [2006] 3 All ER 1. Family Law Council, Discussion Paper, Spousal Maintenance, AGPS, Canberra, 1989, [8.1]–[8.7].

5. 6.

J Behrens and B Smyth, Spousal Support in Australia: A Study of Incidence and Attitudes, Working Party No 16, Australian Institute of Family Studies, Commonwealth of Australia, 1999, p 21, https://aifs.gov.au/publications/spousalsupport-australia (accessed 5 October 2015); L Young and N Wikeley, ‘“Earning

7.

8.

9. 10. 11. 12. 13. 14.

Capacity” and Maintenance in Anglo-Australian Family Law: Different Paths, Same Destination?’ (2015) 27 Child and Family Law Quarterly 129, esp at fn 85. See, for example, Marriage of Best (1993) 16 Fam LR 937 at 962; FLC ¶92-418 per Fogarty, Lindenmayer and McGovern JJ; Mitchell & Mitchell (1995) 19 Fam LR 44 at 61–2; FLC ¶92-601 per Nicholson CJ, Fogarty and Jordan JJ; Vautin v Vautin (1998) 23 Fam LR 627 at 638; FLC ¶92-827 per Fogarty and Burton JJ. See, for example, Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92-595; Waters & Jurek (1995) 20 Fam LR 190; FLC ¶92-635; DJM v JLM (1998) 23 Fam LR 396; FLC ¶92-816; Kiesinger & Paget [2008] FamCAFC 23; (2008) 216 FLR 445. M Finer (Chair), Report of the Committee on One-Parent Families (1974), Cmnd 5629, vol II, App 5, pp 85–149. See also vol I, [4.11]. Manby v Scott (1663) 1 Mod Rep 124; [1558–1774] All ER Rep 274; (1663) 83 ER 1065. See J Barton, ‘The Enforcement of Financial Provisions’ in R Graveson and F Crane (eds), A Century of Family Law, Sweet & Maxwell, London, 1957, Ch 14. S Cretney, Principles of Family Law, 4th ed, Sweet & Maxwell, London, 1984, p 239. M Finer (Chair), Report of the Committee on One-Parent Families (1974), Cmnd 5629, vol 1, [4.19]. Deserted Wives and Children Act 1840 (NSW) 4 Vict, c 5.

15. 16.

Ibid. M Finer (chair), Report of the Committee on One-Parent Families (1974), Cmnd 5629, [2.30]–[2.34].

17.

They are also succinctly documented in A Dickey, Family Law, 6th ed, Lawbook Co, Sydney, 2014, pp 178–87. J Eekelaar, Family Law and Social Policy, 2nd ed, Weidenfeld & Nicholson, London, 1984, p 108.

18. 19. 20.

Matrimonial Causes Act 1959 (Cth) s 84(1). [1964] VR 278.

21. 22.

Ibid at 282. (1968) 11 FLR 197.

23. 24.

Ibid at 200–1. (1976) 2 Fam LR 11,528; FLC ¶90-124.

25. 26.

(1976) 2 Fam LR 11,528 at 11,541. FLA s 48.

27.

Some of these issues are considered in the Family Law Council’s Discussion Paper, Spousal Maintenance, AGPS, Canberra, 1989, and are extensively debated by academic commentators in the literature: R Deech, ‘The Principles of Maintenance’ (1977) 7 Family Law 229; K O’Donovan, ‘Should All Maintenance of Spouses be Abolished?’ (1982) 45 Modern Law Review 424; I Ellman, ‘The Theory of Alimony’ (1989) 77 California Law Review 3; A Diduck and H Orton, ‘Equality and Support for Spouses’ (1994) 57 Modern Law Review 681; R Bailey-Harris, ‘The Role of Maintenance and Property Orders in Redressing Inequality: Re-Opening the Debate’

28. 29.

(1998) 12 Australian Journal of Family Law 3; J Behrens and B Smyth, Spousal Support in Australia: A Study of Incidence and Attitudes, Working Party No 16, Australian Institute of Family Studies, Commonwealth of Australia, 1999, p 21, esp pp 22–6, available at https://aifs.gov.au/publications/spousal-support-australia (accessed 5 October 2015). See more generally, S Middleton, ‘Domestic Violence, Contributions and s 75(2) Considerations: An Analysis of Unreported Property Judgments’ (2001) 15 Australian Journal of Family Law 230. FLA s 4(1). FLA ss 39, 40, 41, 46.

30. 31.

Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495. (1981) 6 Fam LR 916; FLC ¶91-022.

32.

(2011) 46 Fam LR 240; [2011] FamCAFC 208; (2012) 47 Fam LR 105; [2012] FamCAFC 1. (2011) 46 Fam LR 240 at 271; [2011] FamCAFC 208 at [112]; (2012) 47 Fam LR 105 at 119; [2012] FamCAFC 1 at [48].

33. 34. 35.

FLA s 44(3), (3A), (4). For a discussion of the UK position on the ‘clean break’ principle, see Miller v Miller; McFarlane v McFarlane [2006] 3 All ER 1.

36.

See, for example, Marriage of Whitford (1979) 4 Fam LR 754; (1979) FLC ¶90-612; Neocleous & Neocleous (1993) 16 Fam LR 557; FLC ¶91-377. See also FLA ss 75(3), 87(4A).

37. 38.

39.

The difference between these types of orders is explained by Nygh J in two decisions in 1982: Marriage of Ashton (1982) FLC ¶91-285 and Marriage of Pritchard (1982) FLC ¶91-286. Marriage of Chapman (1979) FLC ¶90-671. See also Malcolm & Malcolm (1977) 28 FLR 125; FLC ¶90-220; Williamson & Williamson (1978) 4 Fam LR 355; (1978) FLC ¶90505; Hayson & Hayson (1987) 11 Fam LR 593; (1987) FLC ¶91-819; Napthali & Napthali (1989) 13 Fam LR 146; (1989) FLC ¶92-021; Sadlier v Sadlier [2015] FamCAFC 130 at [36].

40. 41.

Marriage of Ashton (1982) FLC ¶91-285 at [77613]; 8 Fam LR 675 at 676. Marriage of Bevan (1995) FLC ¶92-600; (1993) 19 Fam LR 35 at 42 per Nicholson CJ, Lindenmayer and McGovern JJ.

42. 43.

Burke & Burke (1992) 16 Fam LR 324 at 333; (1993) FLC ¶92-356. See, for example, Australian Law Reform Commission, Report No 69, Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, [2.12]–[2.14]; K Funder, Settling Down: Pathways of Parents After Divorce, Australian Institute of Family Studies, Canberra, 1993; Davis De Vaus et al, ‘The Economic Consequences of Divorce in Australia’ (2014) 28 International Journal of Law, Policy and the Family 26.

44.

45.

Tyson & Tyson (1993) 16 Fam LR 425 at 435–6; FLC ¶92-368; Marriage of Bevan (1993) 19 Fam LR 35 at 40; (1995) FLC ¶92-600; DJM v JLM (1998) 23 Fam LR 396 at 423; FLC ¶92-816. See Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) s 22.

46.

P Ruddock (Attorney-General), Second Reading Speech, Bankruptcy and Family Law

47. 48.

Legislation Amendment Bill 2005, House of Representatives, 17 February 2005. See Biddulph & Biddulph (1977) FLC ¶90-243 at 76,306 (per Maxwell J). (1991) 15 Fam LR 149; FLC ¶92-262.

49. 50.

(1991) 15 Fam LR 149 at 153. (1995) 19 Fam LR 44; FLC ¶92-601.

51. 52.

(1995) 19 Fam LR 44 at 59. Ibid at 58.

53. 54.

[2008] FamCAFC 23 at [24]; (2008) 216 FLR 445. (2008) 216 FLR 445 at 451.

55.

See, for example, Evans & Evans (1978) FLC ¶90-435; Marriage of Richardson (1979) FLC ¶90-603. See, for example, Mitchell & Mitchell (1995) 19 Fam LR 44 at 59; FLC ¶92-601.

56. 57. 58.

Adair v Milford [2015] FamCAFC 29 at [64]. Marriage of Bevan (1993) 19 Fam LR 35 at 40; (1995) FLC ¶92-600; Mitchell & Mitchell (1995) 19 Fam LR 44; FLC ¶92-601.

59. 60.

Wilson & Wilson (1989) 13 Fam LR 205; FLC ¶92-033 at 209 per Strauss J; at 210 per Nygh J); Marriage of Bevan (1993) 19 Fam LR 35 at 42; (1995) FLC ¶92-600. (1995) 19 Fam LR 44; FLC ¶92-601.

61. 62.

(1995) 19 Fam LR 44 at 58. Marriage of Best (1993) 16 Fam LR 937; FLC ¶92-418.

63. 64.

Mitchell & Mitchell (1995) 19 Fam LR 44 at 61–2. Ibid at 63.

65. 66.

Astbury & Astbury (1978) 4 Fam LR 395 at 399; FLC ¶90-494. Marriage of Bevan (1993) 19 Fam LR 35 at 42.

67. 68.

Ibid at 42. See DJM & JLM (1998) 23 Fam LR 396; (1998) FLC ¶92-816. See also 10.27.

69. 70.

See FLA s 4 and, generally, Pt VIIIA ss 90A–90Q. See Family Law Amendment Act 2000 (Cth) Sch 2 s 5.

71. 72.

See Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Sch 1 s 23. FLA s 74(2). See also FLA s 4 as to relevant definitions (as amended by the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Sch 1 ss 9–17).

73. 74.

FLA s 74(3). FLA s 74(4).

75. 76.

FLA s 74(5)–(7). This is particularly relevant to property settlement: see Chapters 12 and 13.

77.

See, for example, Spano & Spano (1979) 5 Fam LR 506; FLC ¶90-707; Rouse & Rouse (1981) 7 Fam LR 780; FLC ¶91-073. See, for example, Heeks & Heeks (1980) FLC ¶90-804; Brady & Brady (1978) FLC ¶90513; (1978) FLR 422; Jacobsen & Jacobsen (1987) 11 Fam LR 990.

78.

79.

(1992) FLC ¶92-308.

80.

Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, [389]. FLA s 90SF(3)(l), (enacted by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Sch 1).

81. 82. 83.

Petterd & Petterd (1976) 1 Fam LR 11,496 at 11,499 per Wood J; FLC ¶90-065. Marriage of J Hirst & E Rosen (1982) 8 Fam LR 251 at 252 per Nygh J; FLC ¶91-230.

84. 85.

(1976) FLC ¶90-048; (1976) 2 Fam LR 11,205. Ibid at 75,202.

86. 87.

See also Marriage of Hope (1977) FLC ¶90-294. See, for example, M Glendon, The New Family and the New Property, Butterworths, Toronto, 1981, p 68, esp fn 65.

88.

89.

Wilson & Wilson (1989) 13 Fam LR 205; FLC ¶92-033; Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600; Mitchell & Mitchell (1995) 19 Fam LR 44; FLC ¶92601; Kiesinger & Paget [2008] FamCAFC 23; (2008) 216 FLR 445. See, for example, Evans & Evans (1978) FLC ¶90-435; (1978) 30 FLR 570; Mapstone & Mapstone (1979) 5 Fam LR 205; FLC ¶90-681; Marriage of Whitford (1979) 4 Fam LR 754; FLC ¶90-612; Woolley & Woolley (No 2) (1981) FLC ¶91-011; Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600; Mitchell & Mitchell (1995) 19 Fam LR 44; FLC ¶92-601.

90. 91.

Astbury & Astbury (1978) 4 Fam LR 395 at 399; FLC ¶90-494. Mitchell & Mitchell (1995) 19 Fam LR 44 at 61–2; FLC ¶92-601.

92. 93.

See, for example, Biddulph & Biddulph (1977) FLC ¶90-243; Marriage of Miller (1979) 4 Fam LR 34; FLC ¶90-669; Patterson & Patterson (1979) FLC ¶90-705. (1977) 3 Fam LN 6; FLC ¶90-294.

94. 95.

(1980) FLC ¶90-890. Petterd & Petterd (1976) 1 Fam LR 11,496; FLC ¶90-065.

96. 97.

(1998) 23 Fam LR 396; (1998) FLC ¶92-816. (1998) 23 Fam LR 396 at 423.

98.

See Marriage of Bevan (1993) 19 Fam LR 35 at 39 per Nicholson CJ, Lindenmayer and McGovern JJ. Stein & Stein (2000) 25 Fam LR 727; FLC ¶93-004 at 87,127.

99.

100. (2000) FLC ¶93-004 at 87,128, confirming the principles stated in Kajewski & Kajewski (1978) FLC ¶90-472; (1978) 31 FLR 500 and Redman & Redman (1987) FLC ¶91-805; (1987) 11 Fam LR 411. 101. See Marriage of Ryan (1988) 12 Fam LR 529 at 533; FLC ¶91-970. 102. Until the commencement of Pt VIIIAB of the FLA, as amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), this only applied to de facto relationships formed in the states and territories that allowed maintenance orders (the Australian Capital Territory, New South Wales, the Northern Territory, Tasmania, Western Australia and Victoria (since 1 December 2008)).

103. (1976) 2 Fam LR 11,528; FLC ¶90-124. 104. (1976) 2 Fam LR 11,528 at 11,553. 105. F & F (1982) 8 Fam LR 29 at 33; FLC ¶91-214. 106. Grabar & Grabar (1976) 2 Fam LR 11,581 at 11,587. 107. Roberts & Roberts (1977) 3 Fam LN N59. 108. Marriage of L (1984) 9 Fam LR 1033; ¶FLC 91-563. 109. See Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Sch 1 s 24. 110. Cf FLA s 90AE(3), where the creditor is arguably in a stronger position. 111. Soblusky & Soblusky (1976) 2 Fam LR 11,528; FLC ¶90-124. 112. Ferguson v Ferguson (1978) 4 Fam LR 312; FLC ¶90-500. 113. (1978) 4 Fam LN N42; FLC ¶90-472. 114. (1982) 8 Fam LR 29; FLC ¶91-214. 115. See, for example, Kauiers & Kauiers (1986) 11 Fam LR 41 at 58; (1986) FLC ¶91-708. 116. M Harrison, P McDonald and R Weston, ‘Child Maintenance in Australia’ (1987) 1 International Journal of Law and the Family 92 at 94. 117. Elder & Elder [2009] FamCAFC 224, [50]. 118. FLA s 80(1)(a). 119. FLA s 80(1)(b). 120. FLA s 80(1)(ba). 121. See Spano & Spano (1979) 5 Fam LR 506 at 507; FLC ¶90-707. 122. Raine v Creed [2015] FamCAFC 133. 123. See, for example, Barry & Barry [2011] FMCAfam 957 [100]–[107]. 124. (1995) 18 Fam LR 693; FLC ¶92-595. 125. Their Honours referred to the following cases by way of example: Vaughan & Vaughan (1981) 7 Fam LR 379 at 381; O’Brien & O’Brien (1982) 8 Fam LR 691; Spano & Spano (1979) 5 Fam LR 506; Anast & Anastopoulos (1981) 7 Fam LR 728; Vartikian & Vartikian (No 2) (1984) 10 Fam LR 165 at 177. 126. (1995) 18 Fam LR 693 at 705–6. 127. See Brown & Brown [2005] FamCA 1165; Budding v Budding [2009] FamCAFC 165 at [29]; Tyson v Tyson (1996) 187 CLR 707 (note); 70 ALJR 285. 128. (1998) 23 Fam LR 627; FLC ¶92-827. 129. (2007) 37 Fam LR 59; FLC ¶93-316. For a summary of developments since Clauson, see Budding & Budding [2009] FamCAFC 165 (O’Ryan J). 130. (2007) 37 Fam LR 59 at 75. 131. Ibid. 132. See Dench & Dench (1978) 6 Fam LR 105; FLC ¶90-469; Marriage of Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600. For a discussion of the UK approach, see the House of Lords decision in Miller v Miller; McFarlane v McFarlane [2006] 3 All ER 1. 133. (1993) 19 Fam LR 35; (1995) FLC ¶92-600. 134. (1993) 19 Fam LR 35 at 40.

135. (1998) 23 Fam LR 627; FLC ¶92-827. 136. (1998) 23 Fam LR 627 at 636. 137. FLA s 77A. 138. (1998) 23 Fam LR 659 at 665; FLC ¶92-826. 139. See Lawler & Lawler (1988) 12 Fam LR 319; FLC ¶91-927; Marriage of Evans (1992) 15 Fam LR 749 at 754–5; FLC ¶92-320. 140. See Pratt v Pratt [2012] FamCAFC 81 at [96] per Finn, Ainslie-Wallace and Ryan JJ, citing Vakil v Vakil (1997) FLC ¶92-743 at 84,027 and Wreford & Caley (2010) 43 Fam LR 1. 141. (1998) 23 Fam LR 659; FLC ¶92-826. 142. (1998) 23 Fam LR 659 at 662. 143. FLA s 83(5). 144. FLA s 83(7). 145. Caska & Caska (2001) 28 Fam LR 307; (2002) FLC ¶93-092. 146. O’Brien & O’Brien (1982) 8 Fam LR 691; (1983) FLC ¶91-316; Ramsey & Ramsey (No 2) (1983) 8 Fam LR 1005; FLC ¶91-323; Park & Park (1978) 4 Fam LR 488; FLC ¶90-509; Kaljo & Kaljo (1978) 4 Fam LR 190; FLC ¶90-445; Warnock & Warnock (1979) 5 Fam LR 668; FLC ¶90-726; Fowler & Fowler (1980) 5 Fam LR 750; FLC ¶90-808; Anast & Anastopoulos (1981) 7 Fam LR 728. 147. (1992) 16 Fam LR 261; (1993) FLC ¶92-343. 148. Caska & Caska (2001) 28 Fam LR 307 at 325 (Holden and Watt JJ agreeing, in a separate judgment, at 340). 149. Bucknell v Bucknell [2009] FamCAFC 177 at [55]. 150. Vault v Isle (2012) 47 Fam LR 252; [2012] FamCAFC 93. For discussion of some of the issues surrounding finalisation of spousal maintenance claims, see Sally Baker, ‘Limiting Bites at the Cherry: Searching for Finality’ (June 2014) Law Institute Journal 30. 151. For a general discussion, see A Dickey, ‘Cessation of Spousal Maintenance Orders’ (1991) 65 Australian Law Journal 346. 152. Being the commencement date of s 37 of the Family Law Amendment Act 1983 (Cth). 153. (1992) 15 Fam LR 749; FLC ¶92-320. 154. (1992) 15 Fam LR 749 at 753 per Moss J. 155. Ramsey & Ramsey (1983) FLC ¶91-301; MHC & QPO [2005] FamCA 138 at [14]. 156. Marriage of Ramsey (No 2) (1983) 8 Fam LR 1005 at 013. 157. Watson v Watson [2006] FMCAfam 293 at [31]–[32]; and see Lotta v Lotta (No 2) [2015] FamCA 551 at [6]. 158. FLR r 20.30. 159. M Broun et al (eds), Australian Family Law and Practice, CCH Australia, vol 1, ¶25140; L Young and N Wikeley, ‘“Earning Capacity” and Maintenance in AngloAustralian Family Law: Different Paths, Same Destination?’ (2015) 27 Child and Family Law Quarterly 129, esp fn 85.

160. Ibid. 161. Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, p 54, www.alrc.gov.au/report-39 (accessed 24 February 2016). 162. Ibid, p xxxii. 163. Mitchell & Mitchell (1995) 19 Fam LR 44; FLC ¶92-601. 164. K Gray, Reallocation of Property on Divorce, Professional Books, London, 1977, Ch 6. 165. M Glendon, The New Family and New Property, Butterworths, Toronto, 1981. 166. R Deech, ‘The Principles of Maintenance’ (1977) 7 Family Law 229. 167. A Diduck and H Orton, ‘Equality and Support for Spouses’ (1994) 57 Modern Law Review 681 at 686. 168. See K O’Donovan, ‘Principles of Maintenance: An Alternative View’ (1978) 8 Family Law 180; K O’Donovan, ‘Should All Maintenance of Spouses Be Abolished?’ (1984) 45 Modern Law Review 424. 169. A Diduck and H Orton, ‘Equality and Support for Spouses’ (1994) 57 Modern Law Review 681 at 686–7. For further discussion of the rationale for spousal maintenance, see M Eichler, ‘The Limits of Family Law Reform or the Privatisation of Female and Child Poverty’ (1990–91) 7 Child and Family Law Quarterly 59; C Smart, ‘Marriage, Divorce and Women’s Economic Dependency: A Discussion of the Politics of Private Maintenance’ in M Freeman (ed), State, Law and the Family, Tavistock, London, 1984; J Eekelaar, ‘Equality and the Purpose of Maintenance’ (1988) 15 Journal of Legal Studies 188; B Fehlberg, ‘Spousal Maintenance in Australia’ (2004) 18 International Journal of Law, Policy and the Family 1. 170. See Australian Law Reform Commission (ALRC), Report No 69, Pt II: Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, Ch 3, pp 10–12, 15. 171. (1993) 99 DLR (4th) 456. 172. Ibid at 482. 173. P Nygh (ed), ‘The Revival of Spousal Maintenance in Canada’ (1994) 8 Australian Journal of Family Law 2 at 2. For a detailed analysis of the decision, see A Diduck and H Orton, ‘Equality and Support for Spouses’ (1994) 57 Modern Law Review 681. 174. [2006] 3 All ER 1 per Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Baroness Hale of Richmond and Lord Mance. 175. Ibid at 8. 176. Family Law Council, Discussion Paper, Spousal Maintenance, AGPS, Canberra, 1989, p 6. 177. Family Law Council, Annual Report 1989–90, AGPS, Canberra, 1990, p 14. 178. Moge v Moge; Women’s Legal Education and Action Fund (Intervener) (1993) 99 DLR (4th) 456. 179. J Behrens and B Smyth, Spousal Support in Australia: A Study of Incidence and Attitudes, Working Party No 16, Australian Institute of Family Studies, Commonwealth of Australia, 1999, p 22, available at https://aifs.gov.au/publications/spousal-support-australia (accessed 5 October 2015).

180. Ibid. 181. See, for example, Australian Law Reform Commission (ALRC), Report No 69, Pt II: Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, Ch 2 (and the extensive literature cited in fn 20 therein). 182. (1995) 19 Fam LR 44; FLC ¶92-601. 183. See the more recent approach to s 75(2) considerations in making a property order, as discussed in Chapter 13. See also R Bailey-Harris, ‘The Role of Maintenance and Property Orders in Redressing Inequality: Re-Opening the Debate’ (1998) 12 Australian Journal of Family Law 3. Sifris suggests this is also evident in decisions to award lump sum maintenance: see A Sifris, ‘Lump Sum Spousal Maintenance — Crossing the Rubicon’ (2000) 14 Australian Journal of Family Law 1. 184. See Marriage of Doherty (1995) 20 Fam LR 137; (1996) FLC ¶92-652; Marriage of Kennon (1997) 22 Fam LR 1; FLC ¶92-757. 185. This policy debate is discussed in R Bailey-Harris, ‘Financial Rights in Relationships Outside Marriage: A Decade of Reforms in Australia’ (1995) 9 International Journal of Law and Family 233 at 234. 186. New South Wales Law Reform Commission, Report 36, De Facto Relationships, Sydney, 1983, Ch 8: ‘Maintenance Claims Between De Facto Partners’, available at www.lawreform.justice.nsw.gov.au (accessed 29 October 2015). 187. New South Wales Law Reform Commission, Report 113, Relationships, Sydney, 2006, Ch 10: ‘Partner Maintenance’, available at www.lawreform.justice.nsw.gov.au (accessed 29 October 2015). 188. Domestic Relationships Act 1994 (ACT) s 19; Property (Relationships) Act 1984 (NSW) s 27; De Facto Relationships Act 1991 (NT) s 26; Relationships Act 2003 (Tas) s 47; Relationships Act 2008 (Vic) s 51; Family Court Act 1997 (WA) ss 205ZC– 205ZD. 189. Domestic Relationships Act 1994 (ACT) s 18; Property (Relationships) Act 1984 (NSW) s 26; De Facto Relationships Act 1991 (NT) s 24; Relationships Act 2003 (Tas) s 46. 190. See also Domestic Relationships Act 1994 (ACT) s 19(1); Property (Relationships) Act 1984 (NSW) s 27(1). 191. [2011] TASSC 30; (2011) 20 Tas R 322. 192. [2011] TASSC 30 at [9]. 193. Domestic Relationships Act 1994 (ACT) s 19(2); Property (Relationships) Act 1984 (NSW) s 27(2); De Facto Relationships Act 1991 (NT) s 26(2). 194. (1993) 16 Fam LR 863; DFC ¶95-139. 195. (1993) 16 Fam LR 863 at 883. 196. Two recent cases in which applications for maintenance under state legislation were successful are Chilcott v Freeman [2011] TASSC 30 and Valera Pty Ltd v Walker (No 2) [2010] NSWSC 1492. 197. (1993) 16 Fam LR 863 at 884. 198. FLA s 75(3). 199. De Facto Relationships Act 1991 (NT) s 26(3); Relationships Act 2003 (Tas) s 47(3);

Relationships Act 2008 (Vic) s 51(3); Family Court Act 1997 (WA) s 205ZD(4). 200. Explanatory Memorandum, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth), House of Representatives, 2008, p 1, www.comlaw.gov.au (accessed 29 October 2015). 201. A Harland, ‘A New Era in De Facto Relationships Law: Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth)’ (2008) 13(4) Current Family Law 195 at 196. 202. FLA s 90SB. 203. FLA s 44(5). 204. FLA s 44(6). 205. FLA s 90SE(1). This presumably explains the absence of the words ‘where the parties have separated or divorced’ in s 90SF(3)(g), as compared with s 75(2)(g). 206. The operation of Pt VIIIAB is extended by items 86 and 86A in Pt 2 of Sch 1 of the Family Law Amendments (De Facto Financial Matters and Other Measures) Act 2008 (Cth). 207. [2009] FMCAfam 1017. 208. Ibid at [18]. 209. [2005] 1 Qld 537. 210. [2009] FMCAfam 1017 at [21]. 211. Close personal relationships have statutory rights in the Australian Capital Territory, New South Wales, South Australia and Tasmania: see Domestic Relationships Act 1994 (ACT); Property (Relationships) Act 1984 (NSW); Domestic Partners Property Act 1996 (SA); Relationships Act 2003 (Tas). In Victoria, the Relationships Act 2008 (Vic) provides for the adjustment of property interests between caring partners who are in, or have been in, a registered caring relationship: see Relationships Amendment (Caring Relationships) Act 2009 (Vic). 212. A Harland, ‘A New Era in De Facto Relationships Law: Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth)’ (2008) 13(4) Current Family Law 195 at 197. 213. [2007] NSWSC 1498 at [47]; (2008) DFC ¶95-414. This is a rare example of a successful argument of the existence of a de facto relationship and later a close personal relationship. During the period of the close personal relationship, the defendant suffered from depression and alcoholism and as a result was significantly impaired. The court did not discuss the issue of personal care. 214. Harland cites the following examples: Dridi v Fillmore [2001] NSWSC 319; Devonshire v Hyde (2002) DFC ¶95-247; [2002] NSWSC 30; Woodland v Rodriguez [2004] NSWSC 1167; Jurd v Public Trustee [2001] NSWSC 632. 215. A Harland, ‘A New Era in De Facto Relationships Law: Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth)’ (2008) 13(4) Current Family Law 195 at 197. Harland cites Bogan v Macorig [2004] NSWSC 993. She notes that the personal care element was also not established in Dridi v Fillmore [2001] NSWSC 319 or Devonshire v Hyde (2002) DFC ¶95-247; [2002] NSWSC 30; Woodland v Rodriguez [2004] NSWSC 1167. By contrast, she notes that the personal care element was successfully established in Jurd v Public Trustee [2001] NSWSC 632 and

Prewonik v Scott [2005] NSWSC 74. 216. FLA s 90SD. 217. See, for example, FLA ss 90RA, 90RC. 218. Commonwealth Powers (De Facto Relationships) Act 2009 (SA). This Act, with the exception of s 4(1)(b), came into operation on 1 July 2010. (Section 4(1)(b) refers power to the Commonwealth to legislate with respect to companion couple relationships and remains uncommenced, as the Commonwealth has not taken up this referral of power.) 219. FLA s 90SF(2). 220. FLA s 90SI(10). 221. Pt VII Div 8 Subdiv B ss 67B–67G. 222. See Commonwealth Powers (Family Law — Children) Act 1986 (NSW), (SA), (Vic) s 3; Commonwealth Powers (Family Law — Children) Act 1990 (Qld); Commonwealth Powers (Family Law) Act 1987 (Tas). 223. FLA ss 67F and 67G. 224. FLA s 67C(1)(a). 225. FLA s 67C(1)(b). 226. FLA s 67C(1)(c). 227. FLA s 67C(2) and (3). 228. FLA s 67E. 229. For details, see www.humanservices.gov.au/customer/services/centrelink/newbornupfront-payment-and-newborn-supplement (accessed 5 October 2015). 230. For details, see www.humanservices.gov.au/customer/enablers/centrelink/newbornupfront-payment-and-newborn-supplement/eligibility-for-nupns (accessed 5 October 2015). 231. For details, see www.humanservices.gov.au/customer/enablers/centrelink/newbornupfront-payment-and-newborn-supplement/payment-rates-for-nupns (accessed 5 October 2015). 232. For details, see www.humanservices.gov.au/customer/enablers/centrelink/newbornupfront-payment-and-newborn-supplement/eligibility-for-nupns (accessed 5 October 2015). 233. For details, see www.humanservices.gov.au/customer/services/centrelink/parentalleave-pay (accessed 5 October 2015). 234. Child Support (Assessment) Act 1989 (Cth) ss 98C, 117. See also Department of Human Services, Child Support website: www.csa.gov.au (accessed 12 April 2016).

[page 713]

11 FINANCIAL SUPPORT OF CHILDREN ___________________________

Introduction 11.1 This chapter deals with the legal obligations of parents1 who do not live together to provide financial support for their children. While the Family Law Act 1975 (Cth) (FLA) creates the general legal obligation of support of children by their parents (s 61C), since the introduction in Australia of a national Child Support Scheme (CSS) in 1988–89, the child support legislation is by far the most relevant to the financial support of Australian children: Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act) and Child Support (Assessment) Act 1989 (Cth) (Assessment Act). 11.2 Before the FLA was enacted in 1975, child maintenance was left to the state and territory legislatures. From the inception of the FLA until 1987, two sets of statutes were in operation to govern the child maintenance obligations of parents, their application being determined by marital status. The support obligations owed by parents to children of their marriage were set out in the FLA, whereas those of parents to children born outside

marriage were contained in the long-established state/territory Maintenance Acts and other legislation. Between 1986 and 1990, all states except Western Australia referred legislative power to the Commonwealth over, among other things, ‘the maintenance of children’: see 4.89ff. This was a step of great significance for Australian family law. This reference of power, and the subsequent Family Law Amendment Act 1987 (Cth), extended the application of the maintenance (and ‘custody’) principles of the FLA to all parents and their children in the referring states, irrespective of the parents’ marital status. State maintenance laws were therefore superseded. Since the FLA also applies in the Australian Capital Territory, the Northern Territory and Norfolk Island, the amending Act also applies in these jurisdictions. In Western Australia, the principles contained in the FLA only apply to children of a marriage.2 The maintenance of socalled ‘ex-nuptial’ children (children born [page 714] to parents who have never been married to each other) are covered by the Family Court Act 1997 (WA); the relevant provisions (Pt 5 Div 7) are not materially different to those in the FLA. 11.3 The 1987 amendment of the child maintenance provisions of the FLA was significant in two respects. The first was the implementation of the reference of powers referred to above. The second was the strengthening of the principles of child maintenance and giving them priority over certain other financial commitments. The child maintenance provisions introduced in 1987 were essentially directed at enforcing parental obligations to support children and changing the criteria used by the courts in calculating levels of maintenance. This change aimed to increase

payments to achieve more realistic levels of maintenance being awarded, which were proportionate to the parents’ means and the real cost of supporting a child. In so doing, the legislature was giving effect to the principles espoused by the Full Court of the Family Court in the important 1986 decision of Mee & Ferguson,3 which marked a turning point in the judicial assessment of child maintenance.4 11.4 When the CSS was introduced, there was a transition period where some children were covered under the FLA and others under the CSS. Since 2007, for all children under 18 whose parents are not living together, child maintenance is determined administratively under the Assessment Act. Section 66E of the FLA provides that a court having jurisdiction under Pt VII must not make, revive or vary a ‘child maintenance order’ in relation to a child if an application could properly be made at that time for administrative assessment of child support under the Assessment Act, thus making it clear that the Family Court no longer has any jurisdiction in these circumstances.5 The only exception may be where the court makes an order for the payment of money in respect of children that can be characterised as an order other than for child maintenance. For example, in the 1996 case of Love v Henderson,6 an order was made for the payment of money by the mother of the children to facilitate the father’s contact with those children, notwithstanding that an application [page 715] for administrative assessment of child support could have been made under the Assessment Act (in this case, by the mother). 11.5 There remain some residual areas7 that have been retained for the jurisdiction of the Family Court: maintenance claims

against step-parents; claims for maintenance for children over the age of 18; applications for maintenance by children themselves; applications involving parents who do not have the required connection with Australia;8 and applications for maintenance other than by way of periodic payments (eg lump sum maintenance claims). Moreover, the Family Court plays an albeit limited role in hearing appeals from applications for departure from the CSS administrative assessment: see 11.74ff. Much of this chapter will therefore be devoted to considering the CSS. Of the areas retained within the jurisdiction of the Family Court, we will focus on two (although cases heard at first instance by, or on appeal to, the family courts are not common in any of these areas). The first situation is where the person from whom financial support of the child is sought is a step-parent (see 11.32–11.38). The second is ‘adult child maintenance’; that is, where the child in need of financial support is over the age of 18 (see 11.18–11.31). Before turning to these subjects, we will present an overview of the general principles that apply to child maintenance under the FLA. These general principles remain significant, as to a large extent they underpin certain aspects of the operation of the CSS; however, for many of the more specific matters (eg income of a child, education expenses, etc.) the focus is now on how they impact on an administrative assessment of child support, in particular in the context of departures from the assessment. Further information about the application of the child maintenance provisions can be found in earlier editions of this book, most recently the seventh edition published in 2009.9 We will also consider the payment of child maintenance other than by periodic payments at a number of points in this chapter (see 11.14 and 11.86–11.88) and Chapter 10.

Child maintenance principles under the FLA

11.6 An application for a child maintenance order under the FLA may be made by a parent, by the child, by a grandparent of the child or by any other person [page 716] concerned with the care, welfare or development of the child.10 Most commonly, applications for maintenance are brought by the parent of a child. Even when a child has reached the age of 18 years, there is nothing in the legislation to prevent an application for child maintenance being brought by a parent on behalf of the child (for ‘adult child maintenance’): see 11.18.11 In practice, applications for maintenance that are brought by children are most likely to be brought by older children, particularly children over the age of 18 who are seeking maintenance to continue their education: see 11.20–11.31.12 11.7 An application for child maintenance is usually brought against the parents of a child. This aligns with s 66C of the FLA, which casts the primary duty to provide child maintenance on a child’s parents. The question of parentage may be a complicated one; this is covered in detail in Chapter 7. In summary, however, it can be said that the term ‘parents’ usually means a child’s biological parents or adoptive parents.13 However, it also covers those persons who are deemed parents of a child born as a result of ‘artificial conception procedures’, and in such cases will exclude certain biological parents (such as sperm donors).14 Applications for child maintenance under the FLA can also be brought against step-parents, but the duty of a step-parent is secondary to and does not derogate from the primary duty of parents to maintain a child.15 The position of step-parents is discussed further at 11.32–11.38. Child maintenance claims cannot be pursued under the FLA (or the Assessment Act) by one foster parent against the other foster parent.16

11.8 The principles of child maintenance are currently found in Div 7 of Pt VII of the FLA. Division 7 states its principal object as being ‘to ensure that children receive a proper level of financial support from their parents’.17 Particular objects of the Division include ensuring ‘that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents’18 and ‘that parents share equitably in the support of their children’.19 [page 717] 11.9 The FLA places a high priority on parental child maintenance obligations. The primary duty of parents to maintain a child (s 66C(1)) has the same level of priority as a duty of a parent to maintain any other child or another person: s 66C(2).20 In Mee & Ferguson,21 the Full Court stated that in giving a high priority to child maintenance, only unavoidable or compulsory expenses (such as income tax or the Medicare levy), together with necessary living expenses, should be notionally deducted from a parent’s income before his or her child maintenance contribution is assessed: … one of the primary responsibilities of a parent is the continued support of children … and that may … mean making financial sacrifices or cutting one’s cloth.22

This is reinforced by s 66C(2)(b), which provides that the duty of a parent to maintain a child has priority over all commitments of the parent other than commitments 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. In the 1991 case of Vick & Hartcher,23 the Full Court held that the words ‘duty to maintain’ refer to the legal duty to maintain another person, not a moral obligation.24 Section 66C(2) goes on to make clear that the primary duty of a parent to maintain a child is not affected by the duty of any other person to maintain the child or any entitlement

of the child or of another person to an income-tested pension or benefit.25 The issue of disregarding pension entitlements has been previously discussed in Chapter 10: see 10.34–10.35. While the FLA places a high priority on parental financial obligations towards their children, the principle that the child’s interests are the paramount consideration does not apply to child maintenance proceedings.26 11.10 The approach to be adopted by the courts in assessing the amount payable (in the limited cases where the family courts have jurisdiction) is set out in s 66H: In proceedings in relation to the maintenance of a child, the court must: (a) consider the financial support necessary for the maintenance of the child …; and (b) determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child that should be made by a party, or by parties …

[page 718] Each of these paragraphs is expanded on in later provisions: s 66H(a) in s 66J, and s 66H(b) in s 66K. 11.11 What level of financial support is necessary to maintain a child? In addition to the matters set out in the statement of objects (s 66B), the court must consider ‘the proper needs of the child’: s 66J(l)(b) (emphasis added). In an administrative assessment of child support under the CSS, a notional cost for each child is generated by a formula, the cost being informed by research and taking account of a child’s age and their parents’ combined financial resources.27 This is not the case in the few areas where a matter is decided under the FLA, where the child’s financial needs are determined on a case-by-case basis. However, in taking into account the proper needs of the child, under the FLA the court must have regard to, among other things, the child’s

age (s 66J(2)(a)(i)), the education and training expectations of the parents for the child (s 66J(2)(a)(ii)), and any special needs of the child: s 66J(2)(a)(iii). Further, s 66J(2)(b) permits the court to ‘have regard … to any relevant findings of published research in relation to the maintenance of children’. There is an extensive body of research on the costs of Australian children.28 The inclusion of this particular provision was in direct response to the judicial pronouncements in the 1986 decision in Mee & Ferguson:29 see 11.3. The Full Court emphasised in that case that evidence must be called to establish the quantum of a child’s financial needs and went on to suggest that the relevant research would provide a useful guide if admitted into evidence.30 The court stated: ‘It demonstrates what most custodians know, namely the very high cost of maintaining a child in our society, and that the courts may be lagging behind reality.’31 Gray has concluded, based on the findings from reviewing Australian estimates of the costs of children: … that there is no unambiguous ‘true cost’ of a child and that, in the end it is a matter for judgment, but that this judgment needs to be informed by the available empirical estimates.32

[page 719] 11.12 In considering the financial support necessary for the maintenance of the child, s 66J(1)(c) of the FLA requires the court to take into account the income, earning capacity, property and financial resources of the child. This is expanded on in s 66J(3), which states that, in taking these matters into account, the court must have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing income. As a general proposition, there appears to be widespread agreement that it is not appropriate for the court to

examine whether a potential earning capacity of a child under the age of 18 might be exercised so as to reduce the obligation of parents to maintain the child. However, this issue might legitimately arise in respect of a child who has left school and is working, or an adult child who is seeking maintenance under s 66L for the pursuit of higher education, as would the question of their actual income, assets and financial resources. Maintenance claims by adult children are dealt with later in this chapter: see 11.18–11.31. By virtue of s 66J(3)(b)(ii), any entitlement of the child to an income-tested pension, allowance or benefit must be disregarded by the court. This reflects the general position that individual legal obligations of support (be it spousal or child support) take priority over state support. Thus, for example, a child’s entitlement to a Commonwealth study benefit (most commonly Youth Allowance, Austudy or Abstudy) would be disregarded.33 11.13 After considering the financial support necessary for the maintenance of the child, the other major task of the court is to determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child that should be made by a party or parties to the proceedings.34 The way in which the legislation is framed (s 66H, followed by ss 66J and 66K, which expand on each of these two stages in the court’s analysis) suggests that this determination is made after the financial support necessary for the maintenance of the child has been assessed.35 Section 66K sets out an exclusive list of factors relevant to the determination of the amount of child maintenance a parent or parents should be ordered to pay. While parents must ‘share equitably in the support of their children’ (s 66B(2)(b)), the quantum of their respective contributions must be dependent on their respective means and needs. More particularly, the court must take into account, in addition to the matters mentioned in s

66B (objects), s 66C (principles regarding parents’ primary duty to maintain) and s 66D (when relevant, the principles [page 720] regarding the duty of step-parents to maintain), the four matters mentioned in s 66K(1)(b)–(e): parents’ income, earning capacity, assets and financial resources (see also s 66K(2)); commitments of each of the parties that are necessary to enable them to support themselves and any other child or other person that they have a duty to maintain; the direct and indirect costs to a parent of providing child care; this includes a consideration of income foregone as a result of providing that care (see s 66K(3));36 and any special circumstances which, if not accounted for, would cause injustice or undue hardship to any person. In addition to the mandatory considerations listed above, s 66K of the FLA also specifies certain matters that must be disregarded. Section 66K(4) directs that the court must disregard any entitlement of the child, or the person with whom the child lives, to an income-tested pension, allowance or benefit, as well as the income, earning capacity, property and financial resources of any person who does not have a (presumably legal) duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them. Finally, while the provisions of the FLA make no reference to rates of child support, the Family Court has held that in determining the appropriate rate of child maintenance, it is not unreasonable to have regard to the rate that would be assessed if

the formula assessment were applied, as a ‘cross check and balance’.37 11.14 The forms that a child maintenance order may take are listed in s 66P of the FLA; they mirror those applicable to spouse maintenance (see 10.36) and include periodic orders, lump sum orders and specified transfers of property (commonly referred to as substitution orders). A maintenance order may therefore take the same form as a property order. Pursuant to s 66R, courts are required to specify whether a lump sum or property transfer order represents child maintenance.38 This, together with other amendments made in 1987 to the spousal maintenance provisions of the Act,39 was designed to ensure that all maintenance income is visible so that income tests in respect of social security benefits can be applied. [page 721] Under the CSS, all administratively assessed financial support paid is based on periodic payments (monthly). Where lump sum child maintenance is sought, the application must therefore be made under the FLA. The approach taken is very similar to that for lump sum spousal maintenance: see 10.36. Section 66K(5) of the FLA expresses a preference for periodic maintenance — the court is required to consider the capacity of a party to provide maintenance by way of periodic payments before considering the capacity of the party to provide maintenance by way of lump sum payment, transfer or settlement of property, or in any other way. Even prior to the enactment of this provision, there was authority for the proposition that lump sum maintenance should not be ordered as a general rule.40 There are good reasons for this approach: lump sum payments take no account of future changes in circumstances, can unfairly deplete the capital of the paying parent and cannot be made final.41 Thus,

as with spousal maintenance, lump sums will generally only be awarded where a party repeatedly fails to pay maintenance, could access a lump sum, and circumstances seem unlikely to change in the near future.42 The operation of s 66K(5) has been considered in a number of cases. In Marriage of Luckie,43 the Full Court of the Family Court upheld an appeal from the decision at first instance, ordering the husband to pay lump sum maintenance. Their Honours held that s 66E(5) (now s 66K(5)) makes it clear that the usual and preferable order for the payment of child maintenance is one for periodic payments, and that the court is not to consider other methods of payment before considering the party’s capacity to make periodic payments.44 The court found that the trial judge had erred as the husband had capital out of which to satisfy an order for periodic maintenance, and the order for lump sum maintenance that had been made had the effect of depriving the husband of the small amount of capital he required for self-support.45 However, in Marriage of Collins,46 the Full Court upheld the decision of the trial judge to make an order for payment of lump sum child maintenance and future school fees. This was because the trial judge had complied with the requirement under the legislation of initially considering the husband’s capacity to make periodic maintenance payments. In the circumstances, the trial judge was quite justified in concluding that an order for lump sum maintenance was [page 722] appropriate in view of the history of the husband’s irregular payments and the fact that the husband only made payments ‘under severe pressure’.47 11.15

As ss 66P(2) and 66S(2) make clear, child maintenance

obligations are by their nature ongoing, can always be varied and cannot be discharged once and for all. Similarly, where child maintenance arrangements are set out in a Pt VIIIA financial agreement, such arrangements will be open to variation; if they do not clearly specify the sum attributable to maintenance (thus permitting variation), they may be void.48 Agreements for child maintenance are discussed at 11.90–11.92. The court’s powers in relation to modification of child maintenance orders are set out in s 66S, which largely mirrors s 83, dealing with modification of orders for spousal maintenance: see 10.37. Before varying an order, the court will need to be satisfied that there has been a change in circumstances.49 Where it is intended that a court order (whether by consent or otherwise) will provide for the payment of child maintenance in a lump sum, or by a transfer of property, to ensure that future variations can be properly considered (eg where care of the child changes), the value of any amount being paid as and by way of child maintenance must be clearly identified: see further, s 66R. 11.16 Under s 66T, a child maintenance order in relation to a child stops being in force when the child turns 18, unless the order is expressed to continue in force after then (which reinforces s 66L(3)). A child maintenance order stops being in force if the child dies,50 and will usually also cease on the death of the person liable to make payments under the order51 or the death of the person entitled to receive payments under the order.52 Under s 66V(1), a child maintenance order in relation to a child ceases if the child is adopted, marries or enters into a de facto relationship.53 In these circumstances (and if the child dies), the person who is entitled to receive payments under the order is required to so inform the person liable to make payments under the order: s 66V(2). 11.17 In keeping with the preference for periodic maintenance, which recognises that child maintenance payments are designed

to meet the day-today expenses of children, a practice had developed whereby the court generally limited the enforcement of payment of arrears of maintenance to 12 months. [page 723] As was said in Cameron & Helie,54 ‘child maintenance arrears are not to be used as some form of lump sum compensation to a party long after the need for the child to be maintained has passed’. However, it was always recognised that there may be circumstances that make it appropriate to enforce arrears for a more lengthy period.55 The problem with the ‘12 month rule’, of course, is that it invited payers of child maintenance to ignore their liability in the hope that they could avoid having to pay maintenance in the future because the payee did not pursue enforcement promptly. More recent decisions have confirmed that such a limitation on enforcement is not appropriate. In Wreford & Caley,56 at first instance the mother was not successful in recovering child support arrears because: she had not incurred debt in supporting the children; she had had support from other partners; and her financial position was better than that of the father, who had no funds from which to pay the arrears and who was in ‘dire’ financial circumstances, with considerable liabilities to financial institutions. On appeal, the Full Court confirmed that, if a ‘12 month rule’ had ever existed, it no longer operated. This case provides a useful example of the considerations that will be relevant to the court’s decision as to whether to enforce or discharge arrears.

Maintenance for adult children 11.18 The obligation of parents to maintain their children normally ends when the children reach the age of 18. However,

children over 18, or a parent on their behalf,57 can apply for maintenance under s 66L of the FLA. This section of the Act enables orders to be made or to continue where a child is over 18 years, if the court is satisfied that maintenance is ‘necessary’ to enable a child to complete their education, or because of their mental or physical disability.58 Thus, there is no automatic entitlement to adult child maintenance; the applicant bears the onus of establishing the maintenance is ‘necessary’ because of the child’s disability or to complete their education.59 This is to be contrasted with child support, where a parent will be assessed to pay child support based on a number of factors unrelated to the child’s actual needs (however, see the departures process discussed at 11.84ff). Given that a liability to pay adult child maintenance is not automatic, the Full Court held in Paul & Paul60 that it was appropriate for the trial judge not to factor in any potential liability for adult child maintenance when determining the division [page 724] of property between the parties; the consideration of adult child maintenance was ‘an independent exercise after the property settlement’. Where an order is made under s 66L, it stops being in force if the child ceases the relevant education or ceases to have the relevant disability.61 There is a positive obligation now imposed on the recipient of the maintenance to inform the liable parent of that change in circumstances as soon as practicable,62 and any child maintenance paid after the order stops being in force may be recovered.63

Applications on the basis of an adult child’s disability

11.19 Applications by or on behalf of an adult child on the grounds of disability are, in practice, rare. In the 1997 case of FM v FM,64 McGrath R noted that while there is no legal duty to support an adult child, either at common law or under statute, s 66L(1)(b) enables the court to make an order in relation to an adult child if satisfied that it is necessary to support the child because of a continuing mental or physical disability, and not merely one that occurs after the child turns 18. The court held that there is a greater onus on an applicant seeking an order under s 66L(1)(b) to demonstrate that the adult child has little or no capacity to earn or derive income, in comparison to an application made under s 66L(1)(a): I consider that the onus that falls upon an applicant … is similar to the onus that falls upon any other adult seeking maintenance pursuant to s 72 of the Family Law Act.65

In Re AM,66 the Family Court held that in circumstances where an adult child is disabled, there is no need to establish a ‘nexus of disability or dependence from childhood to adulthood’.67 The case involved an application for child maintenance by a 28-year-old girl against her father. The daughter (AM) was diagnosed at 21 with the degenerative disease urticarial vasculitis arthritis, which resulted in her inability to be employed and need for ongoing nursing care. Her diagnosis was made 15 years after her parents had divorced. AM’s claim under s 66L(1)(d) was for both periodic maintenance ($2256 per week) and lump sum maintenance ($149,053) to cover the cost of home alterations to assist her to stay in her home. The mother, who was joined by AM to the proceedings in a cross-claim for contribution, accepted that she had a continuing legal duty to support AM during any period of proven disability and made an offer to pay a periodic sum of up to [page 725]

$1000 per week and a $100,000 lump sum payment. The father denied liability, arguing that AM’s illness had not manifested itself until after she turned 18, when his liability ceased. However, the father did concede that he had a moral and social obligation to assist his daughter, and had been paying AM $1000 per month on a voluntary basis since the end of 2003. The father alternatively claimed that the strained relationship between him and AM removed her entitlement to maintenance. The trial judge (Carmody J) concluded that s 66L does not refer to a ‘childhood’ disability: 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.68

The court thus held that it is immaterial for the purposes of threshold liability whether the relevant disability arose in childhood or not, although this may have discretionary importance when it comes to determining quantum. Fehlberg et al note that an important question to arise from this case is ‘when parents’ liability for their children ends’, and they query ‘whether this case effectively makes parents assume the role of insurers of their children against disability’.69

Applications to enable an adult child to complete his or her education 11.20 The great majority of applications under s 66L are in respect of the completion of education. Most reported decisions concern applications relating to tertiary students. When determining maintenance to enable adult children to complete their education and training, the following key principles emerge from the reported cases.

Maintenance may be reasonably necessary rather than absolutely necessary: see 11.21. Maintenance may still be necessary where a child has been able to undertake further study in the past without financial assistance: see 11.22. An adult child’s income and earning capacity, and any property owned by them, do not necessarily reduce the quantum of maintenance or preclude the making of a maintenance order: see 11.23–11.27. [page 726] A child’s entitlement to a government student allowance is to be disregarded in assessing s 66L applications: see 11.26. An application for adult child maintenance may be made under s 66L whether the child in question is a nuptial or ex-nuptial child: see 11.26. A student’s likelihood of success and the appropriateness of the course are relevant to the assessment of maintenance: see 11.28. ‘Education’ is defined broadly to include any form of training for a skill, and is not limited to the first, or single, qualifications: see 11.28. The nature of the relationship between child and parent may be relevant to the assessment of maintenance: see 11.29. An application for maintenance for an adult child can be brought either by the child or by a parent on behalf of the child: see 11.30. Each point is discussed in detail below. 11.21 Early decisions interpreted the term ‘necessary’ very 70 strictly. However, in Marriage of Tuck71 the Full Court of the Family Court held that the trial judge had erred in interpreting

‘necessary’ as meaning ‘absolutely essential’, and formulated a test of reasonableness in all the circumstances: 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.72

In Paul & Paul73 the Full Court described it thus: ‘Whilst we do not construe the word “necessary” as meaning completely indispensable … a base level of necessity does have to be established before the Court is able to exercise a general discretion about the reasonableness or otherwise of making the order’. In that case it was found that the father’s prior agreement to provide support was not sufficient to establish that adult child maintenance was ‘necessary’, particularly in the absence of detailed information about the adult children’s earning capacity, income, savings and actual costs. With regard to the reasonableness of the child’s needs, instances of where the court has rejected an application for maintenance include Marriage of Gamble,74 where the shortfall in funds stemmed, at least in part, from the child running [page 727] a car and a competition speed boat; and O’Dempsey & van Raay75 in 1990, where an adult child’s wish to complete a pilot’s training course one year earlier than he could achieve from his own resources was held not to justify creating a legal obligation on the part of the father to pay. 11.22 The fact that a child has been able to undertake further studies without financial assistance from the parent against whom maintenance is sought does not demonstrate that the support is not reasonably needed in the future. In Re C (No 2),76 the child (who was 18 at the time of the hearing) had been managing to

undertake his university science course on a modest income and with some support from his mother. Fogarty J held: The circumstance that he has been able to do his course to date without financial assistance from his father does not demonstrate that that support is not reasonably needed for the future. It simply demonstrates that he and his mother have been able to do so with some financial difficulty. Whilst the financial circumstances of the respondent are not strong they are sufficient to enable him, without real difficulty, to make the sort of contribution which is sought.77

11.23 In determining whether an adult child needs financial support, the child’s income and earning capacity will be considered. Where a child earns income or has the capacity to do so, for example, through part-time work or holiday employment, this is likely to reduce, or may — depending on the extent of the child’s income or earning capacity — preclude an order for maintenance being made against a parent.78 11.24 Additionally, the court would take into account any property held by the child, although the existence of property does not necessarily preclude the making of a maintenance order. In Marriage of Cosgrove (No 2),79 the respondent wife sought orders for, among other things, the maintenance of her 24-year-old son. The son had left school part of the way through Year 11 some years before, and gone to work on the family’s rural property. He subsequently completed a number of agricultural courses and a business course. During this time, he was given, or received, other assistance amounting to $18,000 in respect of the acquisition of real property. He returned to school to complete Year 11 in 1994 and, at the time of the hearing, was part of the way through Year 12. Both parents were in a position to contribute financially to their son’s support. A significant aspect of the trial judge’s decision80 was his comments about the place of s 66L in the context of the other maintenance provisions in the [page 728]

FLA (at the time of this decision, the relevant provision was s 66H).81 After considering relevant case law, his Honour held that the provisions of then Div 6 of Pt VII (now Div 7) apply generally to applications for maintenance of children over 18, thereby disagreeing82 with the construction arrived at by Moss J in the 1992 case of Marriage of Tynan.83 In that case, Moss J had come to the view that, with the exception of the section dealing with maintenance of adult children (then s 66H, now s 66L) and perhaps the section setting out the general powers of the court (then s 66J, now s 66G), the other sections in the child maintenance Division were solely concerned with non-adult children. This would suggest that applications for maintenance in respect of adult children would be determined by reference to s 66H (now s 66L) alone. Warnick J rejected this interpretation, largely on the basis that the relevant provision is not intended to be comprehensive: To conclude that the other sections of Division 6 do not apply to ‘an application under sec 66H’ (Tynan’s case [(1992) 16 Fam LR 621; (1993) FLC ¶92-385] p 79,982) means that it is to that section that one must look for the duties and rights in respect of maintenance of adult children, and indeed the court’s source of power and consequent ability to entertain applications seeking an exercise of that power. Section 66H contains no such provisions. Section 66H(1) and (2) merely limit the circumstances in which orders can be made for the maintenance of adult children. Indeed, in my respectful view, such applications are not made ‘under sec 66H’ but are affected by that section.84

11.25 His Honour concluded that under s 66H (now s 66L), s 66E(1)(d) (now s 66K(1)(e)) and in particular s 66F (now s 66G), a discretion existed to make such order as the court considered proper.85 After considering relevant matters likely to bear upon the exercise of discretion, Warnick J went on to make an order against the husband for the payment of maintenance for the son for the remainder of the 1995 school year.86 11.26 The husband appealed from this decision to the Full Court on the grounds of the trial judge’s assessment of the son’s

circumstances in determining the child maintenance application, in particular, the son’s capacity to augment his income, [page 729] and the real property held by him.87 In dismissing the appeal,88 the Full Court did not directly address the issue of the construction of the child maintenance provisions, and in particular, which sections are relevant in determining the application for maintenance for an adult child under s 66H (now s 66L). Significantly, however, the Full Court did not question the trial judge’s reasoning, and in particular his reliance on provisions other than that expressly dealing with maintenance for adult children. Further support for this interpretation was seen in the judgment of Chisholm J in Marriage of Carpenter,89 where his Honour found that the terms ‘child’ and ‘children’ in the child maintenance Division under the FLA relate to a relationship rather than an age, and that therefore the balance of the provisions — aside from those dealing specifically with maintenance for adult children — are applicable to applications for the maintenance of children over the age of 18.90 This matter has now been authoritatively settled by the unanimous decisions of the Full Court in Smith; St James; Smith v Wickstein91 and Keltie v Keltie & Bradford,92 in which the decision in Carpenter was approved. Moreover, the Full Court in Smith v Wickstein expressly disapproved Moss J’s decision in Marriage of Tynan:93 see 11.24. Smith v Wickstein raised the question of whether the court is required to disregard a child’s Austudy entitlement in applications for maintenance of an adult child brought under s 66L (the same considerations would apply to Youth Allowance and Abstudy). A further matter at issue in this case concerned the scope of the provisions dealing with maintenance for adult children; in particular, whether they extend to ex-nuptial children.94 In the

course of responding to a number of questions stated for determination by the Full Court, it was held that, as a matter of construction, both ss 66J(3)(b)(ii) and 66K(4)(a) (setting out matters to be disregarded in assessing the financial support necessary for the maintenance of a child and the capacity of the parents to pay, respectively) apply in applications or proceedings for a child maintenance order for a child who has attained 18 years or for such an order that will extend beyond the subject child’s 18th birthday.95 Further, it was held that no valid distinction could be drawn in the application of those sections as between nuptial and exnuptial children, their Honours stating ‘[i]t appears to us that those sections apply to proceedings under s 66L whether or not the child in question is a nuptial or ex-nuptial child’.96 [page 730] In their Honours’ view, now that the Full Court has expressed the opinion that s 66L of the FLA (to the extent that it makes provision for the maintenance of adult, student and ex-nuptial children) and ss 66J(3)(b)(ii) and 66K(4)(a) (in their operation in proceedings for the maintenance of such children) are within the legislative power of the Commonwealth, in any particular case a court will only have to determine whether maintenance is necessary within the meaning of s 66L. However, in doing so, the court must apply ss 66J(3)(b)(ii) and 66K(4)(a) and, accordingly, disregard any entitlement that the subject child may have to Austudy (or Abstudy or Youth Allowance). 11.27 Another noteworthy aspect of the Full Court’s decision in Marriage of Cosgrove (No 2)97 (see 11.24) was the fact that the Full Court accepted the argument put on behalf of the respondent wife that authorities such as Marriage of Bevan98 (see 10.23) and Mitchell & Mitchell99 (see 10.24), which concern the discretion to order

spousal maintenance, should apply maintenance application of this kind:

similarly

in

a

child

We can see no reason why these principles are not equally applicable to child maintenance, the guiding principle being what in all the circumstances is reasonable and this obviously does not require an adult child to divest him/herself of all assets and capital to qualify for an order for maintenance. Applied to the facts of this case, the trial Judge found that B has ‘never been entirely independent of his parents’. B was proposing a course ‘which in today’s society is a basic standard of education … in the contemplation of his parents’. The trial Judge said that B’s decision to leave school in 1987 ‘should not overwhelm other considerations’ nor should the prior opportunities for training provided or the cash provided to him, having regard to the capacity of his parents to provide financial assistance. In all the circumstances, we consider that his Honour’s decision was a considered one that lay within the proper exercise of his discretion. It is of course not to the point that another Judge may well have reached the opposite conclusion in this matter.100

11.28 In assessing an application for maintenance in respect of an adult child for a particular course of study, the court may properly evaluate a student’s likelihood of success101 and the appropriateness of the course in all the circumstances.102 The parents’ contribution is normally expected only to completion of a first degree [page 731] or course;103 however, the case of Henderson & Henderson104 illustrates that this is not an inflexible rule. This case involved an application for the continuation of maintenance from the father for his adult daughter. An order for maintenance had previously been made when the child was 19 years of age and a final-year student at an agricultural college. However, after completing this course, she was unable to obtain employment in the field. She had been accepted as a student at a college of advanced education to train as a physical education teacher but, as a result of an accident, was unable to take up her place. She subsequently gained

admission to a child-care course. The trial judge held that the applicant was in need of maintenance until the completion of her current course. The father appealed against this order, arguing that he should not be required to pay maintenance beyond the completion of the applicant’s agriculture course. By a majority, the Full Court held that s 66H (now s 66L) should not be given an unduly restrictive interpretation.105 The court noted that education is broadly defined in s 60 (see now s 4), including apprenticeship or vocational training, and would include the child-care course undertaken but not yet completed by the applicant.106 The court acknowledged that the applicant had already completed an Associate Diploma from an agricultural college, but stated: We do not think as a matter of law, however, that the completion of one course necessarily precludes an adult child from commencing another one as this girl did and seeking maintenance. It may be that as a matter of discretion, it is more difficult for an adult child embarking upon a second course of education to obtain a maintenance order as is apparent from cases such as Tuck and Tuck (1981) 7 Fam LR 492; 1981 FLC 91-021 but this does not mean that it is not open to a court to make such an order.107

The Full Court found that the trial judge’s discretion had not miscarried.108 While acknowledging that there must be an end to a parent’s obligation to support an adult child undertaking courses of education, given the circumstances of the case, the order made was well within the discretion of the trial judge.109 Relevant considerations in reaching this conclusion were that the diploma course had been of relatively short duration and had been undertaken as a means of obtaining admission to further tertiary courses. The subsequent break in the applicant’s education was due to circumstances beyond her control, and the course eventually undertaken was also of comparatively short duration.110 [page 732]

Note was also taken of the fact that the father’s total obligation of support during these studies was for a period of four years, which was comparable to the duration of many tertiary courses.111 The broad interpretation of the meaning of education taken by the majority in Henderson & Henderson was followed in 1990 in O’Dempsey & van Raay.112 This case involved, among other things, an application for maintenance for an adult child to enable the child to complete a pilot’s training course. The father, who had indicated a willingness to support the child to attend university, denied responsibility for the pilot’s training course, arguing that this course was not ‘education’. Butler J was firmly of the view that a broad meaning of ‘education’ includes not only the statutory categories of apprenticeship and vocation, but also the general equipping of a young person for the tasks of this life, this being training for any skill needed for that purpose. In his Honour’s opinion, any other view would not face the realities of the many facets and complexities of modern society that require the educating of young people in many different ways for many different tasks. Butler J accordingly had no difficulty in deciding that training to be a pilot is within the meaning of the word ‘education’. As noted at 11.21, the actual decision was to dismiss the application for maintenance on the grounds that the child could support himself through the course, and the fact that this would take one year longer did not justify the conclusion that the father should be liable for maintenance. 11.29 A question that has arisen in a number of cases is what relevance, if any, should be attached to the attitude of the adult child to the parent against whom maintenance is sought. In the 1976 case of Marriage of Mercer,113 Watson J commented that an ‘adult son cannot demand a slice of the paternal cake with one breath and spew out filial abnegation with the next’! Asche SJ, in Oliver & Oliver,114 while agreeing with Watson J that a child’s conduct might be such that an order should not be made, went on to say that:

I do not think that it is a necessary element of awarding maintenance that there should be a warm relationship between the parent and the child and if it were necessary in every case to prove that, it would encourage the child who behaved with smarmy obsequiousness to his parent as against the child who remained frank and honest as to his relationship.115

[page 733] Fogarty J in Marriage of Gamble116 (see 11.21) also questioned the appropriateness of such a consideration, commenting that if the degree of deference shown by an adult child were the measure of liability for adult child maintenance, then the section may be left with little operation. All of these comments are obiter, as the applications for maintenance were dismissed on other grounds. Smithers J reviewed this case law in Marriage of H,117 concluding (like Watson J and Asche SJ) that the parent–child relationship may be relevant, but that ‘it is not appropriate normally to distinguish between the children in this connection or to examine their conduct and attitudes’. As with the other cases, in Marriage of H the application failed on other grounds. In Re C (No 2)118 (see 11.22), a case involving an application for maintenance in respect of an adult child where paternity had been disputed and the child and father were ‘strangers’, it was held that the absence of a filial relationship will not preclude the making of a maintenance order in circumstances where that is not in any way the choice of the child.119 Fogarty J held that the child in that case had been an innocent bystander to past events and it was not legitimate for the father to complain now that only at the very end of the period of his financial responsibility, he was being called upon to make a contribution.120 More recently in the 2006 case of Re AM121 (see 11.19), Carmody J considered that the strained father–daughter relationship was a relevant factor to be taken into account in the exercise of discretion to order the payment of child maintenance for an adult child with a disability under s 66L. This factor seemed

to carry significant weight in terms of the orders made. While the fact that the parent and child were not on speaking terms was not a bar to the adult child making a successful maintenance application, the court used this fact to limit the financial liability of the father.122 Although limited in its application, the acceptance of this factor as a relevant consideration is something of an anomaly in modern family law, which normally eschews the application of any faultbased analysis when considering financial matters. Two other situations where this factor may be relevant to maintenance decision-making are in relation to children and their step-parents (see 11.37–11.38), and in the exercise of a court’s discretion when refunding child support where paternity has been disestablished under s 143 of the Assessment Act (see 11.66). [page 734] Carmody J justifies the relevance of this consideration by suggesting that adult child maintenance applications are similar in nature to applications for family provision:123 The principles that apply to deciding need based claims against a deceased estate are not dissimilar to those applicable to a living estate. The general rule is that the testator has to provide for his children and other entitled persons, provided that they are not morally or otherwise undeserving.124

However, that would seem to overlook the context of family law maintenance (and family provision) decision-making. Many claims in family law have a ‘needs’-based component; for example, spousal maintenance awards (see 10.26) and the allocation of a greater share of property to a separated spouse on the basis of future needs (see 14.58ff). Spousal behaviour is irrelevant to such applications, just as a child’s behaviour and their relationship with the parent in question are irrelevant in the application of the child support legislation.125 Unlike s 143 of the Assessment Act, there is nothing in the FLA to suggest a different approach should be

adopted for adult child maintenance claims (note the terms of s 66C), save perhaps that the power to order maintenance for adult children only arises in limited circumstances. The legal obligation to support one’s child — whatever their age — ceases on the death of a parent. Family law maintenance orders are concerned with fulfilling lifetime legal obligations of support, where the capacity to make a contribution exists. Conversely, the discretion of a court deciding family provision claims is very broad, and permits the balancing of a range of moral (as opposed to legal) obligations owed by a testator. Further, as Young and Baxter have detailed, the jurisprudence to this point has overlooked some important factors, not least that the early cases were based on a different version of s 66L and significant changes to the legislation were apparently overlooked in later cases.126 The Full Court has recently recognised these shortcomings in the jurisprudence. In Everett & Everett,127 the parties had one child over 18, K. K had significant health issues, as a result of which the mother had remained at home after K’s birth. As part of her treatment, K engaged in sporting activities and was a very successful sportswoman; she also attained the highest possible school leaving scores and was accepted into a science degree. The relationship between the father and K was poor. [page 735] The federal magistrate who first heard the matter relied on Marriage of Gamble128 in holding that the quality of the parent– child relationship was not relevant to the determination of the mother’s application for adult child maintenance for K. In considering the father’s appeal on this issue, the Full Court confirmed that only s 66K(1(e) permits consideration of the parent–child relationship and therefore this matter is only relevant

to the quantum of any award, not whether the maintenance is reasonably necessary. The court noted that Gamble and Oliver & Oliver,129 did not consider the legislation in its current form, and that the decision in Marriage of Cosgrove (No 2)130 failed to consider the impact of the change to the legislation and in particular the fact that the considerations relevant to an award of adult child maintenance had been narrowed in scope. Their Honours concluded thus: We consider that the following propositions can be drawn from an analysis of the cases and the present legislation: (a) it is not a necessary element, before adult child maintenance can be ordered, that there be a warm relationship between the parent and the child; and (b) there should not be a practice in adult child maintenance applications of conducting a detailed examination of the relationship between the child and the Respondent; however (c) it cannot be said that the attitude or behaviour of the child to the Respondent could, to use the language of s 66K(1)(e), never be a special circumstance which, if not taken into account in the particular case, would result in an injustice or undue hardship to any person. However so stated, it is apparent that the task confronting a parent, who wishes to rely upon the filial relationship in determining what contribution should be made by them to the maintenance of the child, is a particularly difficult one. They would need to show that, if the filial relationship is not taken into account, it would result in an injustice or undue hardship to either them or someone else.131

What was not considered, however, was why this paragraph should be interpreted to include injustice or hardship that is not economic (in contrast to similar child support legislation),132 and why these matters have not been considered in the context of minor child maintenance awards, given the same provisions apply. [page 736] 11.30 An application for maintenance for an adult child can be brought either by the child or by a parent on behalf of the child.

In Marriage of Carpenter,133 the wife had brought proceedings for maintenance against the husband in respect of their two children, one of whom was an 18-year-old university student. The husband had argued that the adult child either be joined as an applicant or be substituted as an applicant to the proceedings because, as a matter of law, the applicant for maintenance pursuant to s 66H (now s 66L) should be the adult child whose financial support is the subject of proceedings. However, this was rejected by the court.134 Rowlands J was satisfied that the Act contemplates the prospect of a parent bringing maintenance proceedings on behalf of an adult child, and reference was made to a number of cases where this had previously been accepted by the Family Court without comment.135 It was, however, stated that, except in cases of mental disability or some other extraordinary circumstances, the parent should demonstrate the child’s informed acquiescence to the application, as was the case in the application before the court.136 11.31 Unless orders are expressed to continue in force after the child turns 18 on the grounds provided for in s 66L, child maintenance orders in relation to a child stop being in force when the child turns 18.137

Liability of step-parents for child maintenance 11.32 A ‘step-parent’ is defined as a person who is not a parent of the child, who is or has been married to, or a de facto partner of, the parent of the child, and who treats the child as a member of the family formed with the parent (or at any time during the marriage or de facto relationship treated the child as such): s 4. 11.33 Under s 66D(1) of the FLA, the duty of a step-parent to maintain a child only arises if the court determines that it is

proper for the step-parent to have that duty. Pursuant to s 66D(2), any duty of a step-parent to maintain a step-child is a secondary duty subject to the primary duty of the parents of the child to maintain the child, and does not derogate from that primary duty. Nevertheless, it is possible for an applicant to seek child maintenance against both a biological parent (with primary liability) and a step-parent (with secondary liability), and this liability extends to a maintenance order made under s 66L in respect of a child 18 years [page 737] or over.138 In Marriage of Duncan,139 the parties had intended to adopt a Korean child who had been living with the husband and wife prior to separation, but adoption was not at that stage proceeded with. Murray J held that the child would retrospectively become a step-child of the husband if, after separation, the wife proceeded to adopt the child. 11.34 Section 66M of the FLA explains the circumstances in which a step-parent has a maintenance duty. It provides that a court may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child. In making such an order, the court must have regard to five matters: 1.

2. 3. 4.

the matters referred to in s 60F (as to which children are children of the marriage), s 66B (setting out the objects of the child maintenance provisions) and s 66C (statement of principle as to parents’ primary duty to maintain);140 the length and circumstances of the marriage to the relevant parent of the child;141 the relationship that has existed between the step-parent and the child;142 the arrangements that have existed for the maintenance of

5.

the child;143 and any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.144

11.35 One question that has arisen in relation to the interpretation of s 66M(1) is whether an application for a maintenance order under s 66M(2) is required before the court can make an order to the effect that a step-parent has a duty to maintain a step-child.145 This is quite an important issue in light of its relevance to the assessment of child support. The Federal Magistrates Court in Carnell v Carnell146 (Jarrett FM) considered this issue in a case where the parent and step-parent were not estranged and were living together as husband and wife. No order for maintenance was sought by the parent against the step-parent, other than an order that the step-parent had a duty to maintain the step-child.147 Such an order was considered by Jarrett FM to be relevant to the step-parent’s assessment of child support for a child of his first marriage pursuant to the Assessment Act, [page 738] where a step-child can be a relevant dependent child (s 5 of the Assessment Act) if there is in force an order under s 66M in respect of the step-child.148 Where a step-child is determined to be a relevant dependent child, the step-parent can seek to reduce the amount of child support he or she has to pay for their own child in recognition of the cost of supporting their step-child: see s 117(2)(a)(i) of the Assessment Act. Jarrett FM held149 that ‘[a]n application for an order for periodic payments, for example, is not necessary before the court has jurisdiction to make an order under s 66M(2) of the Act’: … an order under s 66M(2) of the Act is a parenting order that deals with the maintenance of a child and is, therefore, a child maintenance order in its own

right. That is so because the order imposes a duty to maintain the child the subject of it, where no duty hitherto existed. The precise content of the duty may not be an issue for the parties to it while they remain on good terms, but the content could arguably be defined with more precision if need be by a subsequent application.150

11.36 Section 66N of the FLA provides that in determining the financial contribution towards the financial support necessary for the maintenance of a child that should be made by a step-parent, the court must take into account the following: s 60F (as to which children are children of the marriage), s 66B (objects), s 66C (statement of parents’ primary duty to maintain), s 66D (the principles regarding step-parents’ duty to maintain), s 66K (the matters that must be taken into account in determining the contribution that should be made by a party),151 and the extent to which the primary duty of the parents to maintain the child is being, and can be, fulfilled.152 11.37 A number of cases have arisen under s 66N of the FLA.153 In Cooper & Cooper,154 the parties had commenced cohabitation in October 1984, married in March 1985 and separated in November 1985. The wife brought an application for maintenance against her husband in respect of her two children from a former de facto relationship. The wife had at no time sought maintenance from the children’s biological father, who did not have contact with them. Mullane J held that it was not proper for the court to determine that the husband had a duty to support the children.155 [page 739] Of relevance in the court’s determination was the fact that there was no evidence to establish that financial support by the biological father was not available, since no efforts had been made by the wife to locate him.156 Moreover, the husband’s association with the children had been very short, with the marriage only lasting eight months. Also significant was the fact that the

children had had no contact with the husband since the separation and were unlikely to have contact with him in the future.157 Further, the court found that there were special circumstances to take into account, namely the fact that there had been a delay of more than three years in the wife bringing her application, during which time the husband had remarried without notice of the wife’s claim and had also settled property matters with the wife.158 Similarly, in Marriage of Day159 an application for maintenance against a step-parent failed because the court was not satisfied that proper or any significant steps had been taken to find out why the father of the child was not paying for the child. In this case, after a marriage lasting approximately two years, during which the husband had acted as the child’s father, the husband had consented to child maintenance orders being made. Since that time, contact with the child had ceased. The court (Kay J) held that in spite of the consent order for the payment of maintenance, the obligation of a step-parent is capable of being reviewed to see whether it remains proper for the step-parent to continue to have the duty to maintain the child.160 In view of the short period of cohabitation, and the subsequent breakdown in the relationship between the child and the husband, it was held to be no longer appropriate for the husband to bear any burden for the child’s support. 11.38 In the matter of Dodge & Krapf & Krapf161 considered an application for maintenance that had been brought against the father of a child who had subsequently joined the step-father in the proceedings. Wood J held that having regard to the relevant considerations in determining whether it is proper to find that a step-parent has a duty to maintain, it was in the circumstances proper for the court to declare that the step-father has a duty to maintain the child.162 In reaching this conclusion, the court took into account the strong bond that existed between the child and the step-parent and the continued contact that they had had since

the parties’ separation.163 However, having found that there was a duty [page 740] to maintain the child, the duty was held to be only a secondary duty and subject to the primary duty of the child’s parents to maintain her.164 As there was evidence that the primary duty of the parents could be fulfilled, the court held that no order should be made against the step-father.165 Consequently, even where a potential duty to maintain is established, it may not be found necessary for that duty to be exercised if the biological parents who have the primary obligation of support have the financial capacity to meet the child’s needs. Clearly, however, a step-parent will be required to contribute to the financial support of a step-child in circumstances where it is found proper for the step-parent to have a duty of support and the biological parents of the child are for some reason unable to fulfil their primary obligation of support. Nevertheless, in light of the Full Court’s decision in the 2002 case of Keltie v Keltie & Bradford166 (see 11.26), it should not be overlooked that it is possible for an applicant to seek child maintenance against both a biological parent (with primary liability) and a step-parent (with secondary liability), and this liability extends to a maintenance order made under s 66L of the FLA in respect of a child 18 years or over.

The CSS Introduction 11.39

As outlined at 11.1, the law in relation to the financial

support of children in Australia is now largely dealt with under specific child support legislation; namely the Registration and Collection Act and the Assessment Act.167 This legislation forms the central component of what is known as the ‘Child Support Scheme’ which was introduced in two stages. Stage 1 began on 1 June 1988 as a result of the enactment of the Registration and Collection Act,168 the purpose of which was to establish the Child Support Agency (CSA), originally within the Australian Taxation Office (ATO). The relevant government department is now housed within the federal Department of Human Services and is referred to as DHS (Child Support). For ease of reference we shall refer to it as ‘the Department’. The role of the Department, which is headed by the Child Support Registrar, is the collection and enforcement of maintenance [page 741] payments. Stage 1 also involved major amendments to the FLA,169 the principal effect of which was to strengthen the principles of child maintenance and to give them priority over other financial commitments. The final aspect of Stage 1 of the CSS involved changes to social security legislation regarding the manner in which maintenance payments are to be treated in the system, and eligibility criteria for benefits for sole parents. Stage 2, implemented under the Assessment Act, established a system of administrative assessment of child maintenance liability pursuant to a statutory formula. The Assessment Act commenced operation on 1 October 1989 and applies to parents who have separated on or after that date, or to children born after that date. As it is more than 18 years since that date, all children are now covered by the CSS.

Background to the introduction of the CSS

11.40 There were a number of interrelated factors that led to the introduction of these reforms to the law of child maintenance in Australia. During the 1980s, growing evidence emerged of the low incidence of child maintenance payments. According to a paper released by the Federal Government in 1986,170 less than 30 per cent of carer parents were receiving regular cash payments from non-resident parents.171 Where child maintenance payments were made, their levels were often unrealistically low (usually in the $10–$30 a week range, and commonly $10–$25),172 bearing no correlation to the actual costs of bringing up children or the capacity of the non-resident parent to pay. In practice, the quantum of child maintenance was often set in such a way as to preserve the carer parent’s social security entitlements. As a result of the increase in sole-parent families, there was growing reliance on welfare payments, with over 85 per cent of sole parents (the vast majority being female) in receipt of government assistance.173 A further factor compounding the problems stemming from low maintenance orders was the fact that maintenance was not indexed for inflation, and only rarely were applications made to increase the amount of maintenance ordered. Another major difficulty lay with the enforcement of child maintenance liabilities in those cases where orders or agreements had been made. As there was no effective mechanism for the collection and enforcement of maintenance orders and agreements, maintenance payments frequently fell into arrears and were not enforced. [page 742] The National Maintenance Inquiry174 conducted in 1983 found that at least 40 per cent of maintenance orders were never paid; in many cases payments were intermittent and stopped completely after about two years; and at least 75 per cent of non-resident parents were behind with payments at some stage. At the same time that this evidence was coming to light, research was

published regarding the economic consequences of marriage breakdown,175 which showed that, almost invariably, women who were sole parents experienced a deterioration in their standard of living following separation, whereas the non-resident parent’s financial position often improved. The Federal Government’s Child Support: A Discussion Paper on Child Maintenance176 and research carried out by the Australian Institute of Family Studies177 evidenced that many carer parents never went to court in the first place to obtain a child maintenance order. They were discouraged by costs, by the adversarial framework of litigation (even under the FLA), by the unpredictability of outcome and by the unrealistically low amounts frequently ordered. As this worrying picture emerged of many sole-parent families living in poverty and the payment of maintenance having virtually become a voluntary act, there was widespread recognition of the need for major reforms to the child maintenance system in Australia. For the Federal Government, a significant concern was the need to contain social security expenditure on sole-parent benefits. 11.41 The Cabinet Sub-Committee on Maintenance178 recommended the replacement of the traditional court system involving the exercise of judicial discretion with a radically different administrative system for the assessment, collection and enforcement of child maintenance. The proposal taken up by the government was for the creation of a comprehensive child support scheme. The essence of the CSS is that the quantum of child support payable by one parent to another should be determined administratively on the basis of a legislative formula and that the amounts so determined may be automatically withheld from the paying parent’s income at source, collected by the government and disbursed by the government to the carer parent. 11.42

In terms of structural change, the most significant feature

of the CSS was the shift from judicial to administrative assessment. The new administrative [page 743] formula for the assessment of child maintenance obligations was to be based, among other things, on the income of the paying parent and the number of dependent children living with the carer parent. This was thought to provide a clear and simple statement of parents’ financial responsibilities towards their children, which would more accurately reflect their capacity to pay and ensure greater equity in the respective contributions made by parents. The use of a formula to replace the exercise of judicial discretion would also ensure greater consistency in assessing the quantum of maintenance in similar circumstances. Moreover, this option was promoted on the basis that it would eliminate the delays involved with court decisions and remove the issue of maintenance from the more adversarial (and costly) process of the courts. Further, it was argued that an administrative agency applying a legislative formula would allow greater flexibility compared to the existing court system, in that it would be easier for payments to be adjusted in accordance with changes in income or other relevant circumstances. However, it was recognised from the outset that the use of a formula cannot possibly meet the circumstances of every case and that there would need to be, in certain cases, some flexibility in its application and an adequate review process. 11.43 The dominant motivation of the government in introducing so far-reaching a reform has been a matter of some debate. Was it primarily to increase real levels of child support and thereby alleviate the poverty of sole parents, or rather to save the taxpaying community money by insisting on the fulfilment of personal parental obligations? The answer is undoubtedly both.179

Nevertheless, the reform proposal was that the CSS should eventually cover all separated parents and not just those in receipt of social security pensions, consequently avoiding the creation of ‘first and second class systems of justice’, whereby children of carer parents who are not in receipt of social security ‘would be left with the present ineffective system’.180 11.44 It was the radically innovative nature of the reforms that led to their implementation requiring two stages. Until Stage 2 came into effect, the role of courts in determining the quantum of child maintenance was retained and the Department operated solely as the collector of maintenance payable under court orders or agreements under the FLA. As a result, for a long time there were two distinct categories of children for the purposes of child maintenance: those whose maintenance was governed by the FLA (often referred to as the ‘old population’), and those whose maintenance was assessed under the Assessment Act (the ‘new population’ or ‘Stage 2 children’). However, as we have indicated, given the passage of time, there are now no children who fall within the old population. [page 744]

Reform of the CSS 11.45 Since its inception, the CSS has been controversial. Questions have been raised as to whether it delivers on the stated objectives, particularly with regard to the alleviation of the poverty of sole parents,181 and more generally, as to the efficacy and justice of the system in operation.182 Before considering its evaluation, and the reforms that have been made, it is necessary to give a brief introduction to the formula for administrative assessment of child support that was originally adopted. The formula as it stood until the most recent round of reforms

in 2008 essentially involved calculating a percentage of income to be paid by a liable parent to the carer parent. The percentage was determined by the number of children. The paying parent had a modest ‘exempt income’ (ie a figure deducted before applying the percentage) and the receiving parent’s income was only relevant where it exceeded a fairly high ‘disregarded income’ (and this was rarely the case). The age of the child was irrelevant to the formula and shared care only affected the formula where a paying parent had care of the child for more than roughly 30 per cent of nights. There were variations to the formula for shared care, divided care, multiple cases and so on. It was a very simple formula. Generally speaking, it involved taking a paying parent’s income, deducting around $13,000 and then applying a flat percentage based on the number of children: 18 per cent for one, 27 per cent for two, 32 per cent for three and so on. Its simplicity was one of its strengths, in that it was easily understood and applied. However, the original formula was the subject of much criticism. 11.46 The CSS has undergone several extensive reviews since its introduction. Further information about the reviews of the Scheme can be found in the earlier editions of this book, most recently the seventh edition.183 The major concerns that have arisen over time in relation to the Scheme can be summarised as follows: whether paying parents were bearing a disproportionate cost of maintaining children, and in that context: the failure to take more account of the carer parent’s income in the formula; whether it was fair for child support to continue increasing ad infinitum as payer parent income increased; and whether the formula sufficiently recognised the costs incurred by paying parents having significant contact with their children;

[page 745] whether the capacity of paying parents to pay child support was accurately reflected in formula assessments given a range of matters, including employer-provided fringe benefits, voluntary extra contributions of superannuation by employees, and other arrangements available to the self-employed that (legitimately) reduce taxable income; the rate of complaints directed at the operation of the Department, which raises questions about its efficiency and level of service delivery; the complexity of the legislation; the arbitrary nature of the percentage figures used in the formula; the inability of the Department to enforce unpaid arrears of child support; and the lack of external review of Departmental decisions to depart from formula-based assessments. However, evaluations and reviews of the CSS have also identified that, overall, the Scheme has been a success. It has shifted community attitudes towards the payment of support by parents for their children, increased the level of support paid to children and increased the collection of arrears. While there has been much discussion about how to improve the CSS, there is no legislative will to abandon it in favour of a return to judicially determined child maintenance. As concluded by the Ministerial Taskforce on Child Support in 2005: A formula-based approach to assessing child support is administratively straightforward, transparent and efficient by comparison with more discretionary alternatives, such as relying on the courts. It provides the mechanism for the costs of children to be distributed equitably in accordance with the parents’ capacities to pay. Its outcomes are more predictable. Its administration is also more efficient and cost-effective.184

11.47 As a result of the various reviews and evaluations undertaken, there have been a myriad of reforms to the CSS. The most recent review was that of the Ministerial Taskforce in 2005.185 The recommendations of that taskforce have led to the most significant amendments yet to the Scheme, including some very fundamental changes to the administrative formula used to calculate child support payments. Indeed, due to the complexity of the changes, they were implemented in three waves of reform, the last taking effect on 1 July 2008.186 [page 746] A detailed discussion of the recommendations, changes and rationale underlying those changes can be found in the earlier editions of this book, most recently the seventh edition.187 One key feature of the 2008 reforms was, as indicated, a significant change to the formula for assessing child support, with the new formula being far more nuanced — and thus much more complex — than its forerunner. Whereas once a simple calculator could be used to work out how much child support would be payable in a given case, now only a sophisticated calculator provided on the Departmental website could provide a figure. The increased complexity of the formula is a direct result of criticisms, largely from fathers’ rights groups, that the formula did not take account of enough factors. Surprisingly, a recent call for reconsideration of how the CSS operates — spearheaded by a relatively new Member of Parliament188 — included a complaint that the formula is now too complex. In August 2015, a parliamentary committee charged with again reviewing child support delivered its report, From Conflict to Cooperation: Inquiry into the Child Support Program.189 There were wide-ranging recommendations in relation to how the CSS might be improved. As it is yet far from clear whether these recommendations will be acted upon, we have not discussed them in detail in this edition.

We will turn now to how the CSS currently operates.

Registration and collection of child support Introduction 11.48 The Registration and Collection Act, which came into force on 1 June 1988, established the Department as the collector of periodic maintenance. The Act provides for a Child Support Register190 administered by the Child Support Registrar (‘the Registrar’).191 The rationale for initially locating the Department within the ATO was because it could track liable parents through the use of their tax file number, in addition to the ATO having an existing relationship with employers who are required, in some circumstances, to deduct child support from the salary or wages of liable employees. Further, the ATO had substantial experience in the enforcement of financial obligations and was in a position to trace those who sought to avoid their obligations.192 The Department remained [page 747] with the ATO until 1998; since late 2004 it has been part of the Department of Human Services. Notwithstanding these changes, the Department maintains strong links with the ATO and exchanges information about mutual clients for the purposes of administering the relevant child support and taxation legislation. As we shall see, this close relationship with the ATO has been one of the strengths of the CSS.

Objects 11.49 The principal objects of the Registration and Collection Act as set out in s 3(1) are:

(a) to ensure that children receive from their parents the financial support that the parents are liable to provide; (b) that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis; and (c) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage. That section further provides that it: … is the intention of the parliament that this Act shall be construed and administered, to the greatest extent consistent with the attainment of its objects, to limit interferences with the privacy of persons.193

This latter proviso is significant because the Department has considerable powers both to obtain information and enforce child support obligations. 11.50 By virtue of s 5, the Registration and Collection Act applies throughout Australia; all states and territories have referred their powers to the Commonwealth in this regard apart from Western Australia, which has adopted the legislation via the Child Support (Adoption of Laws) Act 1990 (WA) (this also adopts the Assessment Act in that state).

Collection, payment and enforcement of child support 11.51 The process of transferring child support from payers to payees is administratively complex. However, in essence it involves the registration of a maintenance liability, the collection of the money from the payer, distribution of that money to the payee, and the enforcement of any child support arrears. The maintenance liabilities that can be registered with, and thus collected by, the Department are: a liability of a parent (or stepparent) to pay periodic maintenance arising under a court order (or court registered maintenance agreement if [page 748]

applicable); a liability arising under a child support assessment;194 and a liability to pay spousal or de facto spouse maintenance under a court order (or court registered agreement if applicable).195 Where the liability arises under a court order or registered agreement, both the payer and payee must notify the Department of the order/agreement (so that it can be entered on the Child Support Register),196 unless the payee elects not to have the Department enforce the liability: s 23. Although other liabilities can therefore be collected by the Department, for the purposes of this chapter we will generally refer to child support liabilities. 11.52 Under the Act as originally framed (see repealed s 23(4)), payees who were social welfare recipients were not able to opt out of the CSS. This limitation was in furtherance of the government’s objective of reducing government expenditure by the enforcement of private maintenance liabilities. Currently, pursuant to social security legislation, recipients of income-tested pensions or benefits are under a duty to take reasonable action to obtain maintenance (see 11.60) and would, therefore, be required to seek maintenance through the CSS if they had been unable to do so through other means. 11.53 Registration of a maintenance liability with the Department makes it a debt due by the payer to the Commonwealth: s 30. Consequently, enforcement is generally within the discretion of the Registrar.197 Thus, in addition to the Department collecting child support, it may also enforce any unpaid arrears. The payee may only take legal steps to enforce payment of any child support arrears198 if they notify the Department as required under s 113A.199 This section, which took effect on 1 January 2007, remedied the unfortunate situation where the Department was not prepared to take enforcement action to recover a debt, and yet the person to whom the money was ultimately owed was estopped from taking action either. Given the expense of enforcement proceedings, the normal

situation will remain that the Department takes any enforcement action for the payment of child support arrears. The payee of an enforceable maintenance liability, or the payee and payer jointly, may elect to have the liability no longer enforced under the Registration [page 749] and Collection Act;200 that is, they may choose to have it paid privately between them. Maintenance continues to be due according to the terms of the order, agreement or formula assessment; however, it becomes a private debt due from the payer to the payee.201 11.54 Section 113 of the Registration and Collection Act provides that the Registrar may sue for and recover child support debts due to the Commonwealth either in a court having jurisdiction for the recovery of debts up to the amount of the debt or in a court exercising jurisdiction under the Act.202 The issue of enforcement of child support debts and, in particular, the interrelationship of remedies available under federal and state/territory legislation, was examined at length in the 1995 case of Deputy Child Support Registrar & Harrison.203 The Full Court, disagreeing with the earlier decision of McGrath R in Deputy Child Support Registrar v Willemse,204 held that the child support legislation, the FLA and the Family Law Rules 2004 (Cth) establish a scheme that facilitates the attainment of the objects of the Acts by ensuring the collection of a child support debt by whatever enforcement provisions are available.205 Their Honours expressed the view that the legislative scheme indicates that the enforcement provisions of both the state/territory and federal courts should be seen as complementary to, rather than in competition with, each other.206 Whereas McGrath R saw this as giving the Registrar ‘two bites at the cherry’,207 the Full Court

stated that (subject to abuse of process principles) the Registrar is entitled to ‘continue chewing on the fruit until it has been devoured’.208 Thus, the appeal, which questioned the Registrar’s right to enforce a child support debt and late payment penalties first in the state local court and then in the Family Court, was dismissed. 11.55 The Department has considerable and varied powers of enforcement. In its last published statistics, the CSA stated that it had collected 91.8 per cent of liabilities owed to it since the inception of the Scheme.209 The CSA’s powers of enforcement include garnishment of debts (including wages or salary); seizure and sale of personal and real property; and sequestration [page 750] of estates. Of course, where there are no visible assets or earnings, the Family Court may be able to do no more than make a declaration for an order for the payment of arrears.210 However, the Registrar does have the power to collect child support related debts from a third person, essentially where that person holds funds on behalf of the child support debtor or is due to pay the debtor money: s 72A.211 Section 72B extends this to cover third parties receiving or controlling money of a debtor who is outside Australia.212 Additionally, deductions can be made from social security pensions (s 72AA), family tax benefit entitlements (s 72AB) and veterans’ pensions and allowances (s 72AC). Section 72C allows the court, in certain circumstances, to set aside, or restrain the making of, an instrument or disposition by the payer of a maintenance liability. The court may order that any money or any real or personal property dealt with by such an instrument or disposition be applied towards child support (and costs), or that the proceeds of a sale be paid into court.213 In doing so, the court

must have regard to the interests of a third party, including any bona fide purchaser.214 The Registrar may215 also intercept tax refunds due to payers of child support and apply some or all of the moneys to any debt that person owes to the Commonwealth. This action is now very commonplace (indeed, the CSA apparently recovered $32 million in unpaid child support when parents rushed to file tax returns in 2009 to secure the ‘tax bonus payments’ as part of the 2009 ‘fiscal stimulus package’).216 11.56 An innovative aid to the Registrar’s powers is found in s 72D of the Registration and Collection Act. This permits the Registrar to make a ‘departure prohibition order’ (DPO) preventing the payer of a child support liability from leaving Australia.217 The DPO may be made if the payer has not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged.218 The Registrar must: first, be satisfied that the payer has persistently and without [page 751] reasonable grounds failed to pay child support debts arising from a registrable maintenance liability;219 and second, believe 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.220 A payer who knowingly breaches a DPO faces a maximum fine of 60 penalty units or imprisonment of 12 months (or both).221 However, the Registrar does have the power to grant a ‘departure authorisation certificate’ that would allow a payer to leave Australia temporarily.222 Before granting the required certificate, the Registrar may require the payer to give security for his or her return to Australia by an agreed date.223

11.57 The Registration and Collection Act contemplates automatic deductions from salary or wages as being the standard way that maintenance liabilities are collected; the procedure for this is set out in Pt IV of the Act. The Registrar gives the employer the required notice, and instructs the employer to make appropriate deductions from the payer’s salary or wages and to pay those amounts to the Registrar. Failure to comply is an offence punishable by fine.224 Payments must be made by the seventh day of each month for the preceding month. The legislation preserves for payers a ‘protected earnings amount’.225 This concept is to account for circumstances where a payer’s financial situation has changed since the maintenance liability was incurred, but no action has been taken to have the liability varied or discharged. Where the salary or wages exceeds the ‘protected earnings amount’, only that amount in excess of the protected earnings amount can be deducted.226 Further provisions in relation to employers are set out in Div 3 of Pt IV. These include provisions in relation to the employer’s duty not to disclose information,227 the keeping and preserving of records,228 and access to premises.229 Since these provisions may be seen as unduly onerous by some employers, s 57 makes it a criminal offence for employers to prejudice employees (eg by dismissing them) because they have a registered maintenance liability. [page 752] Payers can opt out of automatic employer withholding, provided they can satisfy the Registrar that they will make timely payments: s 44(1).230 11.58 In all cases where employer withholding is not applicable, the payer is required to make payments directly to the Registrar on a monthly basis231 unless the payee opts for private collection.

Where the CSA is collecting, non-payment and late payment attract penalties.232 11.59 The final stage in the process is for the distribution of the payments to payees, which is dealt with in Pt VI Div 2 of the Registration and Collection Act. All payments collected by the Registrar must be paid into the Child Support Account233 and then paid to payees on a monthly basis.234

Associated changes to social security 11.60 As was noted earlier, a further significant element of Stage 1 of the CSS was the changes made to the social security system that alter the relationship between pensions and child support.235 To receive certain payments under the Social Security Act 1991 (Cth) (most importantly, more than the base rate of Family Tax Benefit Pt A in respect of a child and to include a child for the purposes of rent assistance), a payee is required to take ‘reasonable action’ to obtain child support from the other liable parent in order to establish ongoing eligibility. A payee may be granted an exemption from the reasonable action test — essentially where Centrelink considers that it would be unreasonable to expect a payee to seek child support. The current grounds for exemption are: first, where there is a fear of violence by the payee from the payer; second, where action may have a harmful or disruptive effect on the payee or payer (eg where a child is born as a result of a sexual offence); third, where the payee does not know the identity of the father of the child; fourth, where the payee could not (or has been legally advised they could not) prove paternity; fifth, where the mother conceived via an assisted conception procedure and she was not married or in a de facto relationship at the time;236 sixth, where the payee’s ability to take action [page 753]

is adversely affected by cultural considerations; and last, where there are other exceptional circumstances.237

Administrative assessment of child support Introduction 11.61 Stage 2 of the CSS came into effect on 1 October 1989 with the commencement of the Assessment Act. This was most significant for introducing formula-based assessment of maintenance for children. With some minor variations, the formula remained largely unchanged until the most recent and radical round of child support reforms, which were phased in during 2006–08. 11.62 The objects of the Assessment Act are set out in s 4. This section provides that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents. Pursuant to s 4(2), particular objects include ensuring: (a) that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and (b) that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of children; and (c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and (d) that children share in changes to the standard of living of both of their parents whether or not they are living with both or either of them; and (e) that Australia is in a position to give effect to its obligations under international agreements relating to maintenance obligations arising from family relationship, parentage or marriage.

Section 4(3) goes on to state that: [i]t is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects: (a) to permit parents to make private arrangements for the financial support of

their children; and (b) to limit interferences with the privacy of persons.

It is also worth noting that s 3 spells out the primary duty of parents to maintain a child in identical terms to s 66C of the FLA. [page 754] For the majority of cases, these provisions will be of little practical relevance, as the quantum of child support will be determined by the application of the administrative formula. However, ss 3 and 4 must be taken into account where an application is made for departure from administrative assessment, which is discussed at 11.77ff.

Children to whom administrative assessment applies 11.63 The Assessment Act applies equally to all children, regardless of their parents’ marital status; however, the child must be an ‘eligible child’.238 At the outset, as the CSS was phased in, the provisions governing eligibility (ss 19–21) were crucial. However, as indicated above, with the passage of time all children will now meet the requirement of having been born after the relevant date (1 October 1989) and so will be eligible regardless of other matters. Further preconditions for the administrative assessment of child support are that the child is under 18 years of age, ‘not a member of a couple’, and either present in Australia on the day on which the application is made, or an Australian citizen, or ordinarily resident in Australia on that day.239 The definition of ‘member of a couple’ includes: a married couple; an opposite or same-sex de facto couple; and couples (whether same- or opposite-sex) who have registered their relationship under relevant prescribed state and territory laws: see 1.58 and 5.116ff.240 The exclusion of married and partnered children reflects the fact that legal and de

facto spouses have an obligation to support each other: see Chapter 10.

Persons who may apply for administrative assessment 11.64 Sections 25 and 25A of the Assessment Act set out the persons who may apply to the Department for administrative assessment of child support. Not surprisingly, an application may be made by a parent241 who is not living with the other parent as his or her spouse on a genuine domestic basis (whether or not legally married to that person).242 Thus, either parent may apply for an assessment of child support; they do not have to be the potential payee. Non-parents (usually relatives, such as grandparents) who are caring for a child may also seek child support from the parents. To be eligible to apply, the non-parent carer must: be an ‘eligible carer’ (defined in s 7B(1) as having at least shared care of a child); not be living with a parent of the child; and generally apply against both parents: s 25A. Unlike under s 66F(1)(b) of the FLA, a child is not eligible to apply for child support for themselves. [page 755] Applications for child support will only be accepted where at least one of the parents is resident in Australia on the day the application is made.243 Even then, if one of the parents is resident overseas, special requirements must be met before an assessment will issue: see ss 24(1)(b), 24(2), 29A and 30A. These sections should be taken into account, therefore, when considering both the question of who may initiate an application for child support and against whom applications may be made.

Persons who may be liable for administrative assessment

11.65 The term ‘parent’ is defined in s 5 of the Assessment Act as referring to: an adoptive parent where the child is adopted; a person who is a parent of the child by virtue of s 60H of the FLA where the child was born as a result of an assisted conception procedure (see 7.15ff); and a parent under s 60HB of the FLA where the child was born as the result of a surrogacy arrangement. Consequently, step-parents do not come within the scope of this provision and, as explained above (see 11.32–11.38), applications for financial support against step-parents come within the jurisdiction of the FLA. In addition, child support claims cannot be pursued under the Assessment Act (or under the FLA) by one ‘foster parent’ against the other foster parent.244 In the 1996 case of B v J,245 the respondent had been required by the then Department of Social Security to bring a claim against the applicant who had, on two separate occasions, provided semen to the respondent and her lesbian partner for insemination into the respondent, resulting in the births of two children in respect of whom child support was being sought. The applicant father sought a declaration from the Family Court on the grounds that, as a sperm donor, the children were not his children under s 60H of the FLA and therefore he was not a parent under the Assessment Act. In granting the declaration, Fogarty J held that the applicant did not come within the terms of s 60H of the FLA, and, as he was not a parent under that section he was accordingly held not to be a ‘parent’ for the purposes of the Assessment Act, as defined by s 5 of that Act.246 More recently, in Bateman v Kavan247 Harman J challenged this position, holding that a sperm donor was a legal parent for the purposes of child support in circumstances [page 756] where the donor consented to a child support assessment being issued. As we have outlined at 7.26, when discussing issues of legal

parentage, we consider B v J the better authority on this point, though as Bateman highlights — and as we have discussed in length in Chapter 7 — issues of parentage in family law are becoming increasingly complex and uncertain. Of course, the situation is different if the ‘sperm donor’ engages in vaginal sex with the mother-to-be and a child is subsequently born. This was the situation in the 2003 case of ND v DM.248 Kay J held that, as well as the Australian authorities on the issue, there is a wealth of American authority confirming that, especially where conception takes place ‘in the usual and customary manner’, the biological parent is the parent at law.249

Recovering money wrongly paid under an administrative assessment 11.66 The Family Court (and the Federal Circuit Court) have the power to order the recovery of amounts wrongly paid under the Assessment Act.250 Where the court has made a declaration under s 107 of the Assessment Act that the payee was not entitled to an administrative assessment of child support for the child because the payer is not the parent of the child, it may determine the amount that is to be recovered by the payer and whether payment is to be made in the form of a lump sum payment or a periodic amount.251 In doing so, the court must have regard to the following matters: (a) whether the payee or the payer knew, or should reasonably have known, that the payer was not the parent of the child; (b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar; (c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not the parent of the child; (d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is the parent of the child; (e) the relationship between the payer and the child; (f) the financial circumstances of the payee and the payer.252

What is significant to note is that the power to order repayment of child support is discretionary and the range of relevant factors goes well beyond [page 757] a consideration of fault on the part of the mother,253 though this will be a relevant consideration under para (a). Section 143 was considered by the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) in the 2006 case of Magill v Magill.254 Gummow, Kirby and Crennan JJ held that where parties have separated, s 143 of the Assessment Act, together with s 66X of the FLA, provide the only remedy for ‘economic loss caused by a wife to a husband [as a result of paternity fraud], after the breakdown of their marriage’.255 11.67 The application of s 143 was not the central issue in Magill. That case concerned alleged paternity fraud and was an attempt by the father to obtain a remedy greater than that afforded by s 143 by relying on the tort of deceit. Given the potential ramifications of allowing deceit to apply in relation to marital lies, this is an important case. The parties were married in 1988 and had three children before separating in 1992. Following their separation, the wife applied for child support and by and large the husband paid that support until 1999. Some time after separation (and after gaining access to the wife’s diary), the husband became aware the wife believed he may not have fathered all of their children. In 1995, the wife admitted she had begun ongoing sexual relations with another man less than six months after the birth of their first child. She later gave evidence that she had had unprotected sex with this man every few weeks until mid-1990, with the frequency declining after her second child was born. In 2000, parentage tests were conducted that confirmed the husband had not fathered the

two younger children. As a consequence (and pursuant to the Assessment Act), the court ended, and retrospectively varied, the husband’s child support liability for the youngest two children. Thus, the husband gained a remedy under s 143. The husband subsequently sued the wife in deceit, seeking damages of various kinds. A Victorian County Court judge found the tort of deceit applied and awarded the husband $70,000 in damages (being $30,000 for general pain and suffering, $35,000 for past economic loss and $5000 for future economic loss). The wife successfully appealed. The Victorian Court of Appeal found that the husband had not made out the tort of deceit; in particular, that it was not established that the wife made representations that induced reliance by the husband.256 The husband’s subsequent appeal to the High Court of Australia was dismissed by all of the six High Court justices. All their Honours agreed that Mr Magill had not made out deceit on the facts of the particular case. It is clear from the decision [page 758] that (at least in jurisdictions where deceit is still open for paternity fraud)257 it will be very difficult to establish all of the necessary elements of the tort. In particular, deceit requires a representation, and so more than silence about an affair, or doubt as to paternity, is required. The High Court was clear that there is no obligation of disclosure. On the point of principle — that is, whether as a matter of public policy such actions should be available to couples — five of their Honours held that the action was not available in this case, with Heydon J alone dissenting on that point. All of their Honours rejected the wife’s submission that somehow s 119 (abolition of spousal immunity in tort) and s 120 (abolition of actions for damages for adultery) of the FLA excluded deceit in these circumstances. Gummow, Kirby and Crennan JJ held that ‘the tort [of deceit] does not apply to false representations made

during the course of a marriage about an extra-marital sexual relationship or paternity’.258 Their Honours reached this conclusion because: first, the common law should not proceed on a ‘divergent course’ from the no-fault statutory scheme for family law (and that would be the result of allowing this action); and, second, because deceit is primarily aimed at commercial disputes and was therefore inappropriate in this context. Hayne J took a more novel approach, drawing inspiration from the contractual rule presuming a lack of intention to create legal relations between family members. For deceit to apply, Hayne J held that such a presumption would need to be rebutted; that is, it would need to be shown that the couple intended legal consequences to flow from their representations. Gleeson CJ also found the tort did not apply in this situation, though his precise reason is more difficult to divine. His Honour’s judgment does, however, express sympathy for the core reasoning in the two judgments already mentioned.259 Heydon J was the only justice who evinced no great concern at the prospect of couples suing each other for paternity fraud, instead expressing concern at the just actions that might be denied if any such bar were imposed. His Honour said that the tort was originally widely drawn, no exceptions had been made and there was no good reason to make one here. However, His Honour did not address the fact that at the time deceit was developed, there was spousal immunity in tort — thus, the judges of those times had no need to consider whether an exception was appropriate, because there was already one in place.260 Obiter statements by four of their Honours strongly suggest the same principle would be applied to de facto couples.261 [page 759]

Processing applications for administrative assessment 11.68

The Registrar may accept an application262 (or not) and

act on the basis of that application and the documents accompanying it, and is not required to conduct any further inquiries or investigations to establish compliance with ss 24, 25 and 25A: s 29(1). The Registrar must be satisfied of parentage, and s 29(2) sets out the only grounds that may satisfy the Registrar in this regard. In large part, these reflect the presumptions of parentage in the FLA: see Chapter 7. Where the Registrar is not satisfied as to parentage, a prospective applicant will need to apply to a court having jurisdiction for an order as to the parentage of the child (eg a parentage declaration made under s 69VA of the FLA).263 If the Registrar fails to comply with this requirement, the Registrar’s determination under s 29 is not automatically a nullity, but is open to being set aside pursuant to an application under s 107 for a declaration by a person from whom administrative assessment of child support is sought.264 11.69 If the Registrar is satisfied that an application for child support has been properly made, the Registrar must accept the application and assess the child support rate as quickly as possible.265 The Registrar is required to give notice of decisions to relevant parties. In the event of a refusal of an application for administrative assessment, the Registrar must immediately notify the applicant in writing;266 where the application is accepted, the Registrar must immediately notify the applicant and the person from whom the application sought payment of child support.267

Child support period 11.70 Initially, a child support assessment was calculated annually in line with the financial year (1 July–30 June). To ensure the most up-to-date taxable incomes of both parents are included in assessments, in 1999 a ‘child support period’ was introduced.268 A new child support period is generated on the happening of certain events, most commonly the lodgment by a parent of their

most recent tax return. A child support period may run for as long as 15 months (thus allowing for a delay [page 760] in lodging an income tax return following the end of a financial year),269 after which time a new child support period will automatically begin.

Statutory formula for administrative assessment of child support 11.71 The current formula for the administrative assessment of child support is set out in Pt 5 of the Assessment Act. Set out below are the key features of the new formula. To see the formula in operation, perhaps the best approach is to use the calculator on the Departmental website to work through examples270 or to look at the worked examples in the Report of the Ministerial Taskforce on Child Support:271 see 11.46. 11.72 The standard formulas apply unless there is a child support agreement in place (see 11.90–11.92) or there is a departure from the administrative assessment (see 11.74ff): s 35C. The basic formula is found in s 35. This applies to assessments where there is a single child support case and the only carers are parents. We will not detail them here, but there are separate formulas where a carer is not a parent (s 36) and where there are multiple child support cases (this usually means that the paying parent is paying child support in more than one case): Subdiv C. Unlike the original version, the current basic formula is very complex and we will provide an overview of it, without detailed reference to the legislation. Under the basic formula, where there are two parents involved, the formula operates essentially so as to treat each parent in the

same way. First, each parent’s ‘adjusted taxable income’ is calculated. This will generally be their most recent taxable income. Certain allowable tax deductions are ignored (ie added back to taxable income); for example, net rental losses incurred from an investment property. Where a sufficiently recent taxable income is not available, then another figure will be used, most usually a ‘deemed income’ based on the parent’s most recent taxable income with an uplift factor for inflation. A self-support amount is then deducted from the adjusted taxable income, and this is the same amount for both parents (at the time of writing, $23,752). At this stage, a further deduction is made if the parent has a relevant dependant (ie a biological or adopted child living in their home). The figure achieved after following these steps is called the parent’s ‘child support income’. Both parents’ child support incomes are then added together, to give a combined parental child support income. The next step is to work out what percentage of combined income each parent has — this is called their ‘income percentage’. [page 761] This is necessary because the formula works on the basis that if a parent has, say, 50 per cent of the combined parental income, then they should pay 50 per cent of whatever the costs of the child are. The costs of the children are then calculated according to the combined parental income and the ages and number of children. Implicit in this calculation (which is done by reference to a table) are the assumptions that: children over 12 cost more than children under that age; the costs do not increase after three children; and parents do not continue to spend the same proportion of their income on their children as their income increases. The latter point is reflected in the fact that there is a maximum combined parental income used in calculating the costs

of children — this works to ‘cap’ the costs of children in the formula, and so the maximum amount of child support that can be paid. How then are the costs of the child shared between the parents? The next necessary step is to factor in the care each parent has of the child. For example, where a parent has 50 per cent of the care of a child, and has 50 per cent of the combined income, then they would not pay any child support, on the basis that they were already meeting 50 per cent of the costs through their share of care. But a parent who is due to pay 50 per cent of costs, but has no care, will need to pay 50 per cent of the costs of the child to the parent who has care. However, most cases are not this simple. Each parent’s percentage of care must therefore be calculated. For simplicity’s sake, ‘care’ is taken to mean the number of nights a child lives with a parent. Where a parent has less than 14 per cent of nights (about one night per week), then they are not credited with any care; thus, the other parent is said to have sole (100 per cent) care. However, where the parent has over 14 per cent of nights, there will be an adjustment. So, based on the actual number of nights’ care each parent has in a year, a percentage of care will be calculated. Next, each parent’s ‘cost percentage’ must be calculated. This basically involves taking the parent’s percentage of care, and seeing where it fits in the cost percentages table set out in s 55C. So, a parent with less than 14 per cent care has a cost percentage of nil; a parent with care between 14 per cent and 34.9 per cent has a cost percentage of 24 per cent, and so on up to 50 per cent. The other parent will obviously have the remainder — that is, if one parent has a cost percentage of 24 per cent (because they have 20 per cent care, for example), then the other parent will have a cost percentage of 76 per cent. The effect of this step is just to put the care levels into bands and attribute to each parent a percentage based on which band they fall into. Finally, the child support percentage is calculated by taking the cost percentage (ie the level of care a parent is assumed to have)

away from their income percentage (ie their share of combined parental income). So, a parent with 24 per cent of the care, but 50 per cent of combined parental income, will have a child support percentage of 26 per cent. This figure is then applied to the costs of the child. So, for example, if the costs of the children in question were $10,000, a parent with [page 762] 50 per cent of the income and 24 per cent of the care would have to pay to the other parent (who also has 50 per cent of the income but 76 per cent of the care) $2600 (ie 26 per cent of $10,000). What we can see then is an underlying assumption that parents should pay for their children according to their share of income, and that the costs of children are tied to combined parental income and the age of the child. Thus, the actual costs of the children concerned are not relevant to the formula assessment. Further, it is assumed that when a parent has a certain share of care of their children, they are meeting the same share of the child’s costs. It is also apparent that the income of other people (eg the spouse of either parent) is not relevant and nor are costs associated with supporting a spouse, a de facto spouse or stepchildren. Finally, this formula is tied to income, not assets, so it does not factor in a parent’s overall financial situation in calculating child support. In a ‘nutshell’, the formula may be summarised as follows:

$ = [Father’s AB% − C%] + [Mother’s AB% − C%] A

Parents combined Child Support Income Amount (CSIA) (ie CSIA = Adjusted Taxable Income − Self Support Amount)

B

Costs of children based on variables (ie according to A (above) + number and ages of children)

C

Percentage costs of care already met by virtue of care arrangements (% of time for each parent)

$

Child support payable

11.73 In circumstances where a person’s income is more than 15 per cent less than the adjusted taxable income being used for them (ie it has reduced by more than 15 per cent from their last taxable income), they may elect to have their estimate of current income used instead: s 60. Parents can apply over the phone to have their adjusted taxable income reduced on this basis; having lodged an estimate of reduced income, parents must then advise the CSA within 14 days of any increase to their income. Thus, if a parent loses their job, for example, they may simply ring up to have their income reduced until such time as they find new employment. After the end of the child support period, the position is reassessed [page 763] and any adjustments are made to take account of actual taxable income for the child support year;272 that is, the estimate is

reconciled against actual income. Surprisingly, there is no provision for a parent to increase their income in the same way. Penalties apply for underestimating taxable income (and any supplementary amount).273 The Registrar also has the power to reject an estimate if satisfied that the person’s income will be higher than that stated in the estimate274 (eg where contact with a parent’s employer indicates the income figure provided by the parent is inaccurate). In exercising this discretion, the Registrar is not under any obligation to conduct any inquiry into the merits of the election.275

Departure from administrative assessment Introduction 11.74 One of the Federal Government’s objectives in introducing the formula for the administrative assessment of child support was to remove these matters from the courts and obviate the need for exercise of judicial discretion. However, it was recognised that a formula could never cover all possible circumstances and that there must, therefore, be some mechanism for allowing departure from administrative assessment in appropriate cases. However, it was intended that this be the exception, not the rule. This is achieved through Div 4 of Pt 7 of the Assessment Act, dealing with orders for departure from administrative assessment in special circumstances. Changes that commenced on 1 January 2007 further limited the judicial review of administrative assessments of child support (discussed below). From 1 July 1992,276 the Registrar has had the power to make a determination for departure from administrative assessment: see Pt 6A of the Assessment Act. The grounds for the exercise of this power originally mirrored the powers vested in the courts under Div 4 of Pt 7. That meant a parent could apply for an administrative departure from the assessment (now called a ‘change of assessment’ application); if either parent were unhappy

with the outcome, they could object to the decision (an internal administrative review); and if either party were unhappy with that objection decision, then they could apply to the court for a departure order. Importantly, this process generally had to be followed; that is, the parents could not go straight to court (though under s 116(1), where a court is hearing another matter it is able to decide that child support also be considered without going through this process). [page 764] Apart from serving as a precondition for an application for judicial departure from the formula, the practical significance of this system of administrative review was that it made the review process more accessible. This has resulted in a dramatic increase in the number of ‘change of assessment’ applications which, in many cases, lead to some change in the administrative assessment. In 2007, changes to this process were introduced as part of the second wave of child support reforms. First, the internal change of assessment process can no longer be used for assessments that are more than 18 months old. Applications about ‘old’ assessments must now be taken straight to court, but ‘leave’ is required, and assessments over seven years old cannot be reviewed at all: see Pt 7 Div 3. If a court does hear a departure application about an old assessment, in addition to making a retrospective departure order itself the court may grant the Department leave to make a retrospective change to the assessment. Second, a parent who has been through the Departmental change of assessment and objection processes, and who is still dissatisfied, cannot now take the matter direct to court; they must first go to a tribunal (this was originally the Social Security Appeals Tribunal (SSAT), but as from 1 July 2015 the SSAT has been subsumed by the Administrative Appeals Tribunal (AAT)).277 Finally, where a parent is unhappy with the AAT decision, they can only proceed to court if the

matter at issue is a question of law.278 This is a change, as previously parties had a right to a full merits review in court. The exception is where the Department has refused to make a decision on the application because the matters raised are ‘too complex’: see ss 98E and 98R.279 The AAT can review any decision made on or after 1 January 2007, even where that involves determining matters relating to decisions that were made before 1 January 2007.280 It would seem that, historically, very few parents went to court over child support; that is, matters generally went no further than a Departmental review. The impact of the 2007 changes is likely to be that even fewer cases will come before the courts, with the AAT taking on the major role as external reviewer of Departmental decisions. In fact, even now, very few parents take their matter [page 765] for external review. Thus, unlike other areas of family law where considerable discretion is being exercised, there is not a wealth of case law on departure applications. Exercise of the discretion to depart from the formula assessment is therefore very much guided by the policy of the Department and the approach of its individual decision-makers, who specialise in this area of work and exercise delegated powers from the Registrar. 11.75 Given that the process of departing from the assessment nearly always begins (and often ends) with the change of assessment process, we will discuss the departure process in that context. An application for a change of assessment may be made by either the carer of the child, or the parent liable to pay child support: see Pt 6A Div 2. In limited circumstances, the Department itself may initiate proceedings for a change of assessment: see Pt 6A Div 3. However, whereas parents and carers can base their application on a number of grounds, the Department can only

initiate an application where it appears, after investigation, that a liable parent’s child support rate is not fairly reflected in the assessment, given their ‘income, earning capacity, property and financial resources’: s 98L(1). Where a carer or parent makes an application, s 117 sets out those matters as to which the decision-maker must be satisfied before making a change to the assessment. It is essentially a threestep process. First, one of the grounds for departure set out in subs (2) must be established: s 117(1)(b)(i). Second, it must be just and equitable to change the assessment as regards the child, the carer entitled to child support and the liable parent: s 117(1)(b)(ii)(A). Third, it must be ‘otherwise proper’ to make the change: s 117(1) (b)(ii)(B). The leading authority with regard to departure orders remains the 1991 case of Marriage of Gyselman.281 In this case, the Full Court of the Family Court confirmed that the exercise of discretion under s 117 involves these three distinct steps. The Full Court also explained that the ‘otherwise proper’ step requires the decision-maker to ensure that the decision is proper from the Australian taxpayer’s point of view: Paragraph (a) of s 117(5) again directs the attention of the court to ‘the fact that it is the parents of that child themselves who have the primary duty to maintain the child’. Paragraph (b) is directed to the court taking into account the effect the making of the order would have upon any income tested pension, allowance or benefit of the custodian or child … Where the custodian is on a pension or benefit the effect of a reduction in the assessment would not only be to reduce the overall amount which the custodian will receive for support of the children but will result in an increase in her pension or benefit. This case is a good example of that as any reduction will be ‘shared’ equally by the wife and by the community through an increased pension. In the context of the statement by the legislature that parents have the ‘primary duty to maintain

[page 766] the child’, the court is required to consider whether the proposed reduction is ‘proper’ within this context, that is, the public interest and increased welfare expenditure.282

Subsection 117(1) in turn calls for consideration of a number of parts of s 117, including: first, s 117(2), which details the grounds for departure; second, s 117(4), which provides some legislative guidance for determining whether it would be ‘just and equitable’ to make the order; and third, s 117(5), which provides legislative guidance for determining whether it is ‘otherwise proper’ to make the order. The substance of s 117(4) and (5) (and s 117(6)–(9), which provide further clarification of a number of the terms used in s 117) reflect, to a large extent, the relevant considerations in relation to child maintenance under Div 7 Pt VII of the FLA. The one major exception to that is the test laid down for assessing a parent on their ‘earning capacity’ (as opposed to income) as laid out in s 117(7B); this test is peculiar to the Assessment Act. It is also worth noting the cross-reference between s 117(4)(a), and s 3 of the Assessment Act, which sets out the duty of parents to support their children and which is in identical terms to that contained in s 66C of the FLA. 11.76 In Gyselman’s case (see 11.75), the Full Court also observed that s 117(2) sets out three separate categories of grounds of departure, each with a number of sub-categories and with the potential for overlap.283 These have been broken down into ‘10 reasons for changing the assessment’284 by the Department in the forms it provides to parents seeking a change of assessment. The Department’s 10 reasons are currently as follows.285 1.

2. 3.

4.

The costs of maintaining a child are significantly affected by high costs of enabling a parent to spend time, or communicate, with the child. The costs of maintaining a child are significantly affected by high costs associated with the child’s special needs. The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended. The child support assessment is unfair because of the child’s

5.

6.

income, earning capacity, property or financial resources. The child support assessment is unfair because the paying parent has paid or transferred money, goods or property to the child, the receiving parent or a third party for the benefit of the child. The costs of maintaining a child are significantly affected by the parent or non-parent carer’s high child-care costs for the child (and the child is under 12 years). [page 767]

7.

The parent’s necessary expenses significantly affect their capacity to support the child. 8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents. 9. The parent’s capacity to support the child is significantly affected by their legal duty to maintain another person or child. 10. The parent’s responsibility to support a resident child significantly reduces their capacity to support the child. Returning to s 117(2) of the Assessment Act, it is worth noting that each category is preceded by the words ‘in the special circumstances of the case’, thus emphasising the legislative intention that the court will not interfere with the administrative formula result in the ordinary run of cases, and that the facts of the case must establish something that is special or out of the ordinary.286 Approval was given in Gyselman to the comments of Kay J in Marriage of Savery,287 where it was held that reference to special circumstances should be interpreted as facts peculiar to the particular case that set it apart from other cases.288 In Saberton & Saberton,289 the Full Court pointed out that it is not enough for a

decision-maker to say circumstances are special — they must explain why that is the case. Further, the words of the legislation make it clear that the facts giving rise to the ‘special circumstances’ must fall within one of the grounds for departure set out in s 117(2).290 This requirement for special circumstances is a very significant feature of these provisions, because there may be many matters that fall within the various grounds for departure, but which are not special, apply to the general population and indeed are accounted for in the child support formula. To give just one example, with current high home prices, a parent may need to take on a very large mortgage if they wish to buy a home after separation. The house they buy may be modest, but still require a significant monthly repayment. Equally, rents are very high, particularly in some regions. These matters may affect a parent’s capacity to pay child support; however, they do not meet the test of a ‘special circumstance’ as they are not unusual or out of the ordinary. Parents in this situation would need to consider their obligations of child support and so on, and factor this in when [page 768] deciding whether to buy or rent, where to rent, and so on, as they will not be able to secure a reduced child support rate on this basis alone.291 An interesting decision in this context is Stirling v Dobson.292 In this case, Walters FM found (in obiter) that the extreme wealth of the parents and the wife’s new husband (the mother was worth about $14 million; the father $30 million; and the mother’s new husband $100 million) and the consequently high standard of living of the children amounted to a special circumstance.293 He concluded the reasonable annual costs of the two children, including private schooling fees, were $3605/week and

apportioned a much greater share of that to the husband by way of child support due to his much greater income. The decision is interesting because an underlying premise of the formula assessment is that child support should not increase ad infinitum simply by virtue simply of parental income. Moreover, it is difficult to understand why a different approach has been applied simply because the parents are ‘super-rich’; precisely when will the wealth of a family and the expenditure on the children justify similar departures?294 In the 2011 case Seymour & Seymour,295 the federal magistrate hearing the case at first instance had refused to find a ground for departure established based solely on the husband’s high income (relying rather on high education costs), and then considered the husband’s substantial income in determining a just and equitable rate of child support. The federal magistrate was clear that it was the existence of the cap on income in the formula that led to this conclusion — in other words, the formula already took a position, as it were, on the relevance of high incomes. On appeal, Strickland J affirmed the federal magistrate’s approach.296 [page 769] Thus, an applicant must establish at least one special circumstance falling within one of the 10 reasons — once that threshold is crossed, then under s 117(4) the court can consider the circumstances more broadly (as in a child maintenance inquiry) to determine what rate of child support is fair. The considerations under s 117(4) may in some respects overlap with some of the grounds for departure; however, the two stages of inquiry are distinct and the considerations in s 117(4) cannot be used as the basis for establishing a ground of departure.297

Significantly reduced capacity of either parent to provide financial support

11.77 The first of the three categories of departure is contained in s 117(2)(a) and (aa) of the Assessment Act. The first of those paragraphs relates to cases where the ‘capacity of either parent to provide financial support for the child is significantly reduced’ because of any of the four matters referred to in paras (i)–(iv): (i) the duty of the parent to maintain any other child or another person; (ii) special needs of the child or any other person that the parent has a duty to maintain; (iii) commitments of the parent necessary to enable the parent to support: (A) himself or herself; or (B) any other person or child that the parent has a duty to maintain; (iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain.

This section forms the basis of Reason 7 and Reason 9 in the Departmental application form: see 11.76. These reasons do not relate to any special need/costs associated with the children who are the subject of the child support assessment; those are dealt with in other reasons. Reason 7 is difficult to use (as most expenses of a parent are not special), but some examples include high medical expenses of the parent, or pre-separation debts that the parent must meet (either pending a property settlement or on an ongoing basis). Some examples of when Reason 9 might be used include: a parent is financially supporting a child overseas who is not factored into the assessment; a parent has high travel expenses for contact with another child (ie not a child of this assessment); a child dependent on the parent has high medical costs; or the parent has a spouse who is medically unable to work and support themselves. Section 117(2)(aa) only commenced on 1 July 2008 and replaces the old Reason 10. Old Reason 10298 allowed parents to have ‘additional’ income earned from second jobs excluded in certain circumstances. It was rarely used and has now been abandoned in favour of an administrative process that does not involve any exercise of discretion: s 44. The ‘new’ Reason 10 has a very limited

application, allowing parents to seek a change based on the costs of caring for a child who [page 770] lives with them where: that child is not their biological child; they have lived with a parent of that child for at least two years; and both parents of the child are unable to support the child due to death, ill health or caring responsibilities: s 117(10). This reason is rarely used. 11.78 Section 117(2)(a) contemplates a parent’s reduced capacity to pay child support based on a duty to support another person. In the 1990 case of Marriage of Gerges,299 Kay J interpreted the word ‘duty’ broadly to include moral obligations or an obligation with which one ought or is bound to comply. On this interpretation, the support of elderly parents, siblings or foster children could, in an appropriate case, come within the definition of persons whom a party has a duty to maintain. In the subsequent case of Vick & Hartcher300 (concerning the interpretation of the word ‘duty’ in the child maintenance provisions of the FLA), the Full Court of the Family Court held (expressly disagreeing with the interpretation of Kay J) that the words ‘duty to maintain’ refer only to legal duties and do not include moral obligations of support. This was significant because the Full Court, in Marriage of Gyselman301 (see 11.76), has stressed the importance of a consistent interpretation as between the FLA and the Assessment Act where the same terminology has been used. Thus, the Departmental explanation of Reason 9 now uses the term ‘legal duty’. In the 1997 case of Bienke v Bienke-Robson,302 Kay J (after noting the Full Court’s rejection of his broad view of ‘duty’ in Vick & Hartcher)303 considered a novel question: whether a liable parent had a ‘duty’ to maintain a child who had turned 18 and, if so, the

relevance of such a duty in the context of a departure order in respect of a child support assessment for another (under-18) child. His Honour held that: The duty to maintain a natural or adopted child is created by law but the court is prohibited from making an order in respect of a child over the age of 18 years unless certain criteria are met. In my view, the age of a child is not then to be germane to the issue of whether a person has a duty to maintain a child.304

His Honour went on to comment that the financial support of children over the age of 18, while they complete a tertiary qualification, is not uncommon.305 His Honour stated that: What a child is doing once he or she turns 18 may be a relevant issue. Providing a court or a review officer considering issues under s 117(2)(a)(iii)(B) of the

[page 771] Assessment Act is satisfied that the child meets the criteria set out in s 66L of the Family Law Act, then a duty to maintain can be accepted as existing without the charade having to be gone through, which was gone through in this case, of going to a court of competent jurisdiction and obtaining an order by consent as between parent and child to acknowledge existence of the duty … It is absurd, in my view, to imagine that the legislature requires a parent to obtain a court order before a liable parent could be given credit for supporting an 18 year old child who was completing his or her final year of secondary education. I see no difference in respect of such a child undergoing tertiary education.306

Notwithstanding these comments, his Honour found that the capacity of the father to meet the assessment was not significantly reduced by his duty to support his elder child and he dismissed the departure order application.307 This case is significant in that it makes it possible for either a carer parent or liable parent to bring the support of an over-18 child forward as a reason to reconsider the child support paid for children under 18. 11.79 Considerable attention has been given to the meaning and application of the words ‘commitments of the parent necessary to enable that parent to support himself’ in s 117(2)(a) (iii)(A) of the Assessment Act. As was pointed out in Gyselman’s

case (see 11.75, 11.76 and 11.78), this raises (among other things) the question of whether the repayment of debts may be a commitment ‘necessary to enable’ the parent to support himself or herself.308 The Full Court noted that divergent interpretations had arisen, as illustrated by a comparison of the cases of Marriage of Barber309 and Marriage of De Gier310 on the one hand (which adopted a very narrow interpretation that excluded commitments not essential for a person’s own support) and Marriage of Morrison311 on the other (where a more liberal view was taken of the interpretation of the provision).312 The Full Court in Marriage of Gyselman made clear that the broader approach in Marriage of Morrison was to be preferred.313 In the court’s view, the term ‘commitments of the parents necessary to enable the parent to support himself’ means commitments that are reasonably needed for that purpose.314 Their Honours (Nicholson CJ, Fogarty and Nygh JJ) stated: The obligation of the non-custodian to pay off debts may amount to such a commitment. It is, we think, too narrow an approach to suggest that as these

[page 772] are liabilities to a third party they are not necessary for the parent to support himself. Such a liability may be enforced against the parent by an order to garnishee his wages or to seize his property or to render him bankrupt … Whether a particular obligation to pay off a debt should or should not be included within paragraph (a)(iii) depends upon the circumstances of the individual case.315

High costs of the child 11.80 The second broad category for departure is dealt with in s 117(2)(b) of the Assessment Act. This paragraph is concerned with the situation where: … in the special circumstances of the case, the costs of maintaining the child are significantly affected: (i) because of high costs involved in enabling a parent to spend time with, or

communicate with, the child; or (ia) because of special needs of the child; or (ib) because of high child care costs in relation to the child; or (ii) because of the child being cared for, educated or trained in the manner that was expected by his or her parents.

Whereas the first category of grounds relied on the costs affecting a parent’s capacity to provide financial support to eligible children, these grounds focus on a special cost that raises the overall costs of raising the eligible child. This section is reflected in Reason 1 (high costs of contact), Reason 2 (special needs of the child), Reason 3 (high training or education costs) and Reason 6 (high child-care costs). A common example of the use of Reason 2 would be special medical needs, such as ongoing medication, and perhaps most commonly, necessary orthodontic work. Reason 3 is generally used where the parents have agreed on a private education for the child prior to separation, and a post-separation dispute ensues as to payment of the associated fees. In relation to high child-care costs, s 117(3A) of the Assessment Act makes it clear that these will not be taken into account unless: (a) the costs are incurred by a parent or a non-parent carer; and (b) the child is younger than 12 at the start of the child support period.

Additionally, s 117(3B) only allows high child-care costs to be taken into account if, over the relevant child support period: … they total more than 5% of the amount worked out by: (a) dividing the parent’s adjusted taxable income for the period by 365; and (b) multiplying the quotient by the number of days in the period.

[page 773] That is, the child-care costs must in effect be more than 5 per cent of the parent’s income (both of which are calculated over the child support period).

Given the vast distances in Australia, applications under s 117(2) (b)(i) regarding the high costs involved in enabling a parent to have contact with the child are relatively common. As with childcare costs, s 117(2B) stipulates that contact costs are only high where they exceed a certain threshold in a child support period; again, that threshold figure is 5 per cent of the parent’s income over the relevant child support period. In Marriage of Gyselman (see 11.75, 11.76, 11.78 and 11.79),316 the Full Court expressed its approval of the interpretation of this provision in the earlier cases of Hall & Rushton317 and Marriage of Houlihan.318 It was held that the reference to ‘high costs involved in enabling a parent access’ (as it was then worded) refers to the commitments of a parent that are necessary to allow contact to take place.319 This would obviously cover the high cost of travel and could, in appropriate cases, also include accommodation and other costs. The Full Court held that provision does not, save in quite exceptional circumstances, cover expenses associated with the conduct or enjoyment of the contact itself.320 Given the changes to child support since 2006 and the greater recognition of shared care in the formula, the Department’s Child Support Guide now states that, as of 1 July 2008, where a parent has 14 per cent or more shared care, the only costs that can be claimed under this ground are travel costs: s 117(2C).321 In the sixth edition of this book, we noted that the CSA (at that time) accepted that a change of assessment based on the high contact cost ground could include the legal costs of securing that contact. We said this was highly controversial because a reduction of a child support assessment on this basis would have the effect of making a de facto costs order against the other parent.322 The position has now been clarified by the decision of Sexton FM in MAV v NTV,323 which confirmed that legal costs could not be considered under this provision. Note should be made of the overlap that exists between s 117(2) (a)(iv) and (b)(i) of the Assessment Act. The provision under s 117(2)(a), concerning commitments of a party, covers

circumstances where a parent incurs high costs in order to enable the parent to have contact with any other child or a person that the parent has a duty to maintain; an example might be a biological child living [page 774] overseas and not factored into the formula assessment. The interpretation of this provision is also governed by s 117(2B) (see above), and the decision of the Full Court in Marriage of Gyselman would apply, at least with regard to the issue of contact with another child.

Child or parents’ financial situation and payments in lieu of child support 11.81 The final category of departure (s 117(2)(c)) is that, in the special circumstances of the case, the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent: first, because of the income, earning capacity, property and financial resources of either parent or the child; or second, because of any payments, or transfer or settlement of property made or to be made by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.324 These provisions are reflected in Reason 4 (child’s income, assets, earning capacity and financial resources make assessment unfair), Reason 5 (payments in lieu of child support make assessment unfair) and Reason 8 (parents’ income, assets, earning capacity and financial resources make assessment unfair) of the Departmental application form. Reason 4 is generally used where an older child has left school and gone into employment. Reason 5, which is included to ensure parents do not end up effectively paying child support twice (eg

where a lump sum for child support has been included in a property settlement), is not often relied on in change of assessment applications, though there have been some court decisions.325 This is partly because there are also administrative processes available for parents to claim certain payments as credits against their child support liability.326 Thus, a liable parent paying for a carer parent’s rent, or mortgage, could have that automatically credited towards child support. Reason 8 is the reason most commonly relied on when seeking a change to a child support assessment and is routinely used to deal with: simple changes in income; cases where the taxable income of a self-employed parent is claimed not to reflect their real financial resources and so their capacity to pay child support; where company and trust structures have the effect of diverting income away from a parent; where a parent is asset-rich but chooses not to derive income from those assets; [page 775] where a parent has non-taxable income, such as a redundancy payment; and cases where it is alleged a parent is avoiding child support through failing to declare income or through underemployment. Marriage of Savery327 (see 11.76) provides an early example of the application of Reason 8. The income of both parties had risen considerably in the period June 1988 to February 1990. The applications came before the court in early 1990. The applicant wife had argued that in these circumstances, reference back to the

husband’s 1988 taxable income created an artificial result that was unjust and inequitable in the special circumstances of the case. Kay J granted the application, holding that it was appropriate to reassess the maintenance payable by having regard to the existing incomes, rather than the 1988 or 1989 financial year position.328 This emphasises an important point about the use of past taxable incomes in the formula. Past incomes are used, in part, because it is easy information for the Department to access without relying on parental cooperation and for most parents it is a fair indication of their current income. However, there is no entitlement to rely on a past taxable income; nor is there any obligation to continue being assessed on such an income, as evidenced by the estimate process referred to at 11.73. Thus, many successful change of assessment applications are simply about updating income information of parents where there has been a significant change not reflected in the tax return presently being used in the assessment. Even when the court had greater jurisdiction to review child support assessments, it would not generally entertain an application for departure from administrative assessment simply on the grounds of a reduction in income, because the parent could elect to lodge an estimate to remedy the situation.329 However, estimates of reduced income cannot be lodged retrospectively, and so some parents may seek to use the change of assessment process to overcome their delay in lodging an estimate of reduced income. It is arguable that, unless there are very good reasons for the parent’s delay, there will be no special circumstance under Reason 8 in such a case, as the formula routinely uses past incomes and it is for the parent to advise if the figure has reduced. A failure to do so can hardly be considered a special circumstance peculiar to the case that sets it apart from others. An example of a reason for delay that might amount to a special circumstance is a medical crisis, or perhaps being incarcerated. Further, it would seem inappropriate that the rather expensive (but free to the parent) change of assessment process should be used simply because a

parent fails to avail themselves of an administrative remedy to their problem (which involves making a phone call to lodge an estimate). 11.82 It is not uncommon for applications to depart from administrative assessment to be brought on the basis that the parent liable for child support [page 776] has left employment in order to avoid child support obligations. This raises the question of a parent’s earning capacity, and whether a parent might be assessed to pay child support on the basis of their capacity to earn, rather than on their actual income. This would also cover cases where a parent is alleged to be underemployed. The relevant section, as originally drafted, referred only to a parent’s earning capacity, with no clarification as to how this was to be applied. This was not surprising as it no doubt reflected to some extent the terms of s 75(2)(b) of the FLA, which requires the court, when considering a spousal maintenance application or the ‘future needs’ component of a property settlement (see 10.25 and 14.58), to take into account the parties’ physical and mental capacity for gainful employment. As early as 1992, in the case of Marriage of Bolton,330 Cohen J held that the application of the provisions of the Act relating to administrative assessment would result in an unjust and inequitable determination of the level of financial support to be provided by the husband where his earning capacity was far greater than his income.331 The leading authority (on the provision as originally drafted) came in 1998 with the case of DJM v JLM,332 where the Full Court, after finding that the father had the capacity to manipulate his income, held that: It was an appropriate and proper exercise of discretion for the trial judge to fix the rate of child support as referable to a figure that the husband could not manipulate.

In the circumstances, the figure chosen by the trial judge, being the maximum prescribed under the legislation, was an appropriate exercise of discretion.333

While the court in DJM v JLM appears to give a wide discretion to assess parents on earning capacity rather than actual income where they change their employment and thereby reduce their income, it is submitted that decision-makers within the Department generally looked at whether the parent’s actions in relation to employment were reasonable, given their child support obligations. So, for example, a parent who wanted to give up working away on the mines, in favour of a job in the city, would not normally have been assessed on their earning capacity. However, a parent who gave up employment without first securing alternative employment and with no regard for the financial care of their children might well have been assessed on their earning capacity. It has been argued that cases such as DJM v JLM have paid too much attention to a parent’s motivation and that this is not necessarily the most important factor, though of course it may be relevant.334 [page 777] 11.83 As a result of concerns being expressed about the way earning capacity decisions were being made by the CSA, when the CSS was most recently reviewed (in 2005) this matter was reconsidered. There was only a brief discussion of this important issue in the Report of the Ministerial Taskforce on Child Support: see 11.47.335 Following that report, a new test for earning capacity has been introduced. The aim of the new legislation is clearly to reduce the situations in which earning capacity can be considered. However, the test now revolves very much around motivation. The new test is set out in s 117(7B) of the Assessment Act. This provides that a decision-maker may only find a parent’s earning capacity is greater than their income in the assessment when: the parent could be, but is not, working full time; the parent has

reduced their hours below what is normally full time in their industry; or the parent has changed their job or working pattern. Even if one of these situations applies, a finding on earning capacity still cannot be made if the parent in question can establish that their work pattern (or failure to work) is justified because of their caring responsibilities or their state of health. Consequently, if care responsibilities or health justify the work arrangement, then a parent’s earning capacity cannot be considered. However, if that is not the case, then the final part of the test must be considered. This was added to the legislation to ensure that parents could not escape, too easily, being assessed on earning capacity, but it is arguably a very severe provision. The final step, found in s 117(7B)(c), provides that a parent can avoid having their earning capacity considered if they can demonstrate that a major purpose in their decision as to their employment arrangement was not to affect the child support assessment. Therefore, if a parent cannot show that their decision to change jobs, or reduce their hours etc., was not substantially motivated by reducing (or increasing, if they are a carer parent) child support, then the decision-maker is entitled to consider their earning capacity. The difficulty in this final part of the test is that, for many parents, it will be very difficult to establish their motivations (and thus, that child support was not a primary one). Moreover, we would suggest that this test is not in keeping with the overall thrust of child support legislation, which is to ensure a fair sharing of a child’s costs between parents. As an example, imagine that a parent paying child support decides to take on a promotion for a much greater income; the parent finds they are required to work much longer hours, pay more tax and more child support. On reflection, they decide that the extra work that comes with the more senior position is not worth the extra (net) pay after paying their increased child support, so they seek to return to their initial employment. A parent in this situation might still, on their lower income, make a reasonable

[page 778] contribution to the costs of raising their child. However, it would be very difficult to assert that a major motivation in their decision to change their employment pattern was not reducing child support and so they might find themselves assessed on their earning capacity. In contrast, a parent who could establish that their motivation in not working for an extended period was the fulfilment of their lifelong desire to participate in a yacht race, might well be able to avoid being assessed on their earning capacity, even though this might quite unreasonably leave them with no capacity to help support their child over the period in question.336 In the latest recommendations for reform to the child support legislation (in 2015: see 11.47), it was again suggested that the earning capacity provision be reconsidered because: … there are also genuine instances where a person’s earning capacity may decrease due to decreased market demand for certain skills, the need to retrain, health issues or other life changes.337

Little basis was provided for this suggestion and indeed, all of the matters raised can be taken into account under the provision as it is presently worded to avoid a decision based on earning capacity; a parent who can show that any of the above factors apply will presumably be able to establish that their decrease in income is not primarily to avoid child support.

Changes to an assessment under Pt 6A 11.84 The change made to an assessment as the result of a departure order or a change of assessment application could entail determining that a higher or lower amount of child support is payable. In that context, adverse decisions are possible; that is, a parent might apply for a reduction in child support, but the decision-maker is entitled to decide that child support should be

increased instead (or vice versa). It is also possible for decisions to relate to periods other than those raised in the application.338 Moreover, although under the administrative formula there is a point at which child support will not increase further, no such ‘cap’ applies to departures from the assessment.339 Where the court concludes that it is appropriate to depart from the assessment, s 118 coupled with s 141, dealing with the general powers of [page 779] the court, gives the court (and delegated decision-makers) wide powers to vary or discharge the assessment, including, although not limited to, varying one or more of the component parts of the formula.340 So, for example, where it is found that Reason 9 is established by a liable parent on the basis that they have a legal duty to support another child (eg overseas) that is not factored into the assessment, then one approach might be to adjust the formula by adding another relevant dependant for that parent.

Varying a departure from assessment 11.85 Consistent with the approach to decision-making about children under the FLA, no decision about child support is ever really final. So, where circumstances change, a parent may apply to vary an existing change of assessment decision and the same three-stage process outlined in s 117 is then applied again. Under s 98J(2), the Registrar may refuse to accept a fresh application for change of an assessment where a prior application based on the same information has already been refused. There is no equivalent provision relating to applications to court;341 however, as we have seen, in general the court can only hear departure applications in very limited circumstances in any event.

Orders for child support other than in periodic form 11.86 Though not expressed as such in the Assessment Act, as with maintenance payable under the FLA, there is a clear preference for child support to be paid periodically: the default period chosen under the Act is monthly. However, again similarly to the FLA (see 11.14), it is possible to obtain a court order under Pt 7 Div 5 that child support be paid in a lump sum or that a ‘substitution’ order be made (ie an order that a payment is made — say, for school expenses, private health cover or the provision of a vehicle — in substitution for paying child support): s 124. An application under this Division may be made by either the liable parent or carer parent: s 123. Parents may make such orders by consent; in the case of substitution arrangements, it will of course be generally easier for parents in agreement to claim an administrative credit against the child support liability for any such payment: see 11.81. Under s 123(2), an application for non-periodic child support can only be brought if an administrative assessment is in force in relation to the child, the entitled carer and the liable parent.342 If a parent is seeking a departure order (in [page 780] relation to the quantum of child support) as well as an order under Pt 7 Div 5, the departure order must be considered first: s 123(3).343 11.87 Section 124 sets out a range of mandatory considerations when making an order. As with departure orders, the court must be satisfied it would be ‘just and equitable’ and ‘otherwise proper’ to make an order: s 124(1). Therefore, the court must have regard,

among other things, to: the administrative assessment of child support; any existing departure decisions; and the impact of any order on the entitlement of the carer parent to income-tested government benefits: s 124(2). However, s 124(5) makes it clear that the mandatory considerations do not limit the matters that the court may consider. 11.88 We have discussed elsewhere the reasons for the reluctance of the courts to make orders for lump sum maintenance (see 11.14), and the same considerations apply in relation to child support. Child support is designed to meet day-to-day needs, and these will invariably alter over time. Thus, the advance payment of lump sum child support can result in injustice where circumstances later change. In reality, ordering lump sum child support (like spousal and child maintenance) has very often been a way of overcoming enforcement problems where liable parties persistently fail to meet their obligations. CK & SML344 provides a good example of the circumstances in which a court may agree to order lump sum child support. In this case, Walters FM concluded that the father had deliberately failed to disclose information relevant to his financial situation so as to portray his situation as less strong than it really was. The father was found to have kept large sums of cash in his home and he was not able to provide satisfactory explanations concerning a number of unusual transactions. Overall, Walters FM concluded that the father would take whatever steps were necessary to protect his financial position, even to the extent of providing misleading information, and that his evidence to the court was either false or less than fully truthful. In relation to his attitude to child support, his Honour concluded that the father often failed to pay voluntarily, would be likely to manipulate his financial affairs to reduce as much as possible his liability, and would exploit all avenues possible to challenge any child support assessment. In Walters FM’s view, the only way the mother was likely to receive an appropriate level of child support was by the making of a lump

sum order. A sum of $43,615 was awarded based on an income of $50,000 for the father, the length of time till the child turned 18 and a discount factor to allow for the money being paid in advance as a lump sum. Reithmuller notes that a common practice in court now is to avoid the making of lump sum child support orders by instead ordering that a parent pay money to [page 781] a third party (such as a solicitor) as security for payment of child support. Thus, child support continues to be periodic (paid by the third party from the sum), but some security is provided for ongoing payment. This allows for future changes to be more easily accommodated.345

Private arrangements for child support 11.89 There are a number of ways in which parties can make private arrangements as to child support. This is in keeping with s 4(3)(a) of the Assessment Act, which states that it is the intention of parliament that the Act should be construed, to the greatest extent consistent with the attainment of its objects, to permit parents to make private arrangements for the financial support of their children. The carer of a child may choose not to apply for child support and choose instead to accept a voluntary payment. If, however, the carer is receiving a sole parent’s pension, Centrelink may require that person to take reasonable action (see 11.60) to obtain child support as a precondition to pension entitlement. It is also possible for parties to enter into an unregistered child maintenance agreement, in order to preserve their privacy in the making of their child support arrangements.

However, in either case the carer would subsequently be free to apply for an administrative assessment under the Assessment Act. Depending on the terms of the original agreement, it may provide a basis for a successful departure application, as was the case in Marriage of Sloan.346 Another possibility is for the parents to seek a departure or substitution order by consent. By virtue of ss 118(4) and 126(2) of the Assessment Act, a court is, in these circumstances, exempted from the usual requirement of providing reasons for its decision, provided that the carer entitled to child support is not in receipt of an income-tested pension, allowance or benefit. However, even for consent orders, the court must still be satisfied that the terms of the order meet the criteria of the relevant provisions, particularly the requirement that it is ‘otherwise proper’ for the court to make the orders sought.347 11.90 Under the Assessment Act, specific provision is made for the parties to enter into and formalise a private agreement by registering a child support agreement under Pt 6 (there is no liability until registration occurs). The Act makes it clear that the same agreement can also be registered under the FLA as a financial agreement (or a maintenance agreement when applicable, or a parenting plan).348 By virtue of s 84, parties are given a relatively free hand as to the terms of their agreement. [page 782] It is not common for parents to utilise child support agreements, because they are very hard to undo and there is considerable scope for post-agreement changes in circumstances. Under s 81 of the Assessment Act, child support agreements can be either ‘binding’ or ‘limited’. Like financial agreements (see 15.35ff), for binding child support agreements to take effect they must meet quite stringent execution requirements, including a

requirement that the parties obtain legal advice: s 80C(2). Such agreements cannot be varied: s 80CA. They may be set aside by court order; otherwise the parties can jointly terminate an agreement and, if they wish, enter into a new agreement: ss 80D and 136. Limited child support agreements do not require legal advice (see s 80E(1)), and provide limited scope for unilateral termination (s 80G(1)(d) and (e)). 11.91 Part 6 Div 3 of the Assessment Act makes provision for an application to be made for the acceptance of a child support agreement by the Registrar. This step is a necessary precursor to having the agreement take effect under the CSS. Provided the Registrar is satisfied that the application for the acceptance of the agreement has been properly made — that is, it is a child support agreement within the meaning of the Act and is in the appropriate form349 — the Registrar must accept the agreement.350 Once an agreement has been accepted, the Registrar is required to assess child support in accordance with the terms of the agreement.351 The effect of the Registrar accepting the agreement is to make the agreement binding and enforceable as if it were a consent order made by a court under Pt 7 Div 4. 11.92 Last, the court has the power to set aside an agreement that has been registered if the court is satisfied, on the application of a party to the agreement, that the concurrence of the party was obtained by fraud or undue influence.352

Cessation of child support 11.93 Section 12 of the Assessment Act sets out a number of ‘child support terminating events’ that apply in respect of both administrative assessments353 and court orders.354 The listed events include:

the child dies;355 the child ceases to be an eligible child by virtue of regulations enacted under s 22 (to the effect that a child under child welfare law is not an eligible child);356 [page 783] the child turns 18;357 the child is adopted;358 the child becomes a ‘member of a couple’;359 the child leaves Australia and ceases to be an Australian citizen or ordinarily resident in Australia;360 the eligible carer or liable parent dies;361 the liable parent ceases to be resident in Australia;362 neither parent is an eligible carer of the child and there is no non-parent carer entitled to claim child support;363 or an international maintenance arrangement applies in respect of the child.364 Where a child turns 18 before completing their secondary education, the carer parent may seek an extension of child support to the end of the school year: s 151B. 1.

In very limited circumstances, this can include step-parents: see 11.32.

2.

FLA s 69ZF. For the definition of ‘child of the marriage’, see FLA s 60F and the discussion in Chapter 4 of the constitutional significance of this phrase. (1986) 10 Fam LR 971; FLC ¶91-716. The Full Court criticised the ‘going rate’ for child maintenance and laid down guidelines directing that child maintenance orders should be based on a proper assessment of the child’s needs, and the capacity of the non-custodial parent to meet those needs.

3.

4. 5.

See B Fehlberg, J Behrens and R Kaspiew, Australian Family Law: The Contemporary Context, Oxford University Press, Melbourne, 2008, p 395. In Isdale & Dore (1997) 22 Fam LR 560; (1998) FLC ¶92-798, this was held not to include an overseas maintenance order registered under Pt XIII. See also s 66E(3). As to the jurisdiction of the Family Court in respect of child support, see Assessment

Act Pt 7. 6. 7.

(1996) 20 Fam LR 128; FLC ¶92-653. Cf Hayne & Hayne (1994) FLC ¶92-512. Note also FLA s 67B, under which an unmarried mother can apply for child birth expenses to be met by the father.

8.

Assessment Act ss 24, 25. For a decision concerning the assessment of child maintenance where a parent lives overseas, see Carr v Vincent (No 2) [2011] FMCAfam 1308. In particular, note the significance placed on the rate of child support that would be assessed under the CSS at [69]ff. See also Beck v Sliwka (1992) 15 FLR 520; FLC ¶92-296. L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, Ch 10.

9. 10. 11.

FLA s 66F(1). Marriage of Carpenter (1993) 17 Fam LR 259; (1994) FLC ¶92-444.

12. 13.

FLA s 66L. FLA s 4 (definition of ‘parent’).

14.

15.

See FLA s 60H (‘artificial conception procedure’ is defined in FLA s 4). See also 7.17ff and the discussion of the case law there in relation to the existence of a parent–child relationship for the purposes of the FLA. FLA s 66D. See also Keltie v Keltie & Bradford (2002) 29 Fam LR 114; FLC ¶93-106.

16. 17.

Tobin v Tobin (1999) 24 Fam LR 635; FLC ¶92-848. FLA s 66B(1).

18. 19.

FLA s 66B(2)(a). FLA s 66B(2)(b).

20. 21.

See Coon v Cox (1993) 17 Fam LR 692; (1994) FLC ¶92-464. (1986) 10 Fam LR 971; FLC ¶91-716.

22. 23.

(1986) 10 Fam LR 971 at 989. (1991) 15 Fam LR 149; FLC ¶92-262.

24. 25.

(1991) 15 Fam LR 149 at 153. FLA s 66C(2)(c).

26.

See Marriage of Tynan (1992) 16 Fam LR 621 at 635 per Moss J; (1993) FLC ¶92-385; Marriage of Carpenter (1994) 18 Fam LR 542 at 549 per Chisholm J; (1995) FLC ¶92583. Though note the surprising decision in Stirling & Dobson (2011) FLC ¶98-056, where Walters FM accepted an argument that the fact that the normal living costs of the particular children in this case were so high amounted to a special circumstance justifying a departure from an administrative assessment of child support: see 11.76.

27.

28.

29.

For further discussion of the research commonly relied on by decision-makers, see L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [10.12]–[10.13]. (1986) 10 Fam LR 971; FLC ¶91-716.

30.

(1986) 10 Fam LR 971 at 976.

31. 32.

Ibid. M Gray, Costs of Children and Equivalence Scales: A Review of Methodological Issues and Australian Estimates, Department of Families, Housing, Community Services and Indigenous Affairs, Canberra, 2005, p 18, available at www.dss.gov.au (accessed 16 March 2016).

33. 34.

Marriage of Hagedorn (1988) 12 Fam LR 569; FLC ¶91-965. FLA s 66H.

35.

Marriage of Hagedorn (1988) 12 Fam LR 569 at 571; FLC ¶91-965 (note that the court was dealing with the pre-Family Law Reform Act 1995 (Cth) child maintenance provisions); Coon v Cox (1993) 17 Fam LR 692; (1994) FLC ¶92-464 per Nicholson CJ. The fact that s 66K(3) does not feature in the reported cases raises a question as to how much weight was indeed given to this consideration in practice.

36. 37. 38. 39. 40.

Styles & Palmer [2014] FamCA 383 at [361], referring to the Full Court decision in Beck v Sliwka (1992) FLC ¶92-296. See Habib & Habib (1988) 12 Fam LR 127; FLC ¶91-931. FLA s 77A (note also s 90F in relation to spousal maintenance provisions in financial agreements). See Vaughan & Vaughan (1981) 7 Fam LR 379; FLC ¶91-066. V & G (1982) 8 Fam LR 193.

41. 42.

See the discussion in Vaughan & Vaughan (1981) 7 Fam LR 379; FLC ¶91-066. See Branchflower & Branchflower (1979) 6 Fam LR 188 at 200; (1980) FLC ¶90-857. See also Collins & Collins (1992) 16 Fam LR 261; (1993) FLC ¶92-343.

43. 44.

(1989) 13 Fam LR 223; FLC ¶92-036. (1989) 13 Fam LR 223 at 226.

45. 46.

Ibid. See also Marriage of Smith (1994) 18 Fam LR 133; FLC ¶92-494. (1992) 16 Fam LR 261; (1993) FLC ¶92-343.

47. 48.

(1992) 16 Fam LR 261 at 270. See also Marras & Marras (1985) 10 Fam LR 47; (1985) FLC ¶91-635. FLA s 90E.

49. 50.

See Marriage of Smith (1994) 18 Fam LR 133; FLC ¶92-494. FLA s 66U(1).

51. 52.

FLA s 66U(2), but note s 66U(3). FLA s 66U(4), but note s 66U(5).

53.

See FLA s 4AA for the definition of ‘de facto relationship’, which includes same-sex couples. [2004] FMCAfam 685 at [98].

54. 55. 56.

Spry & Roet (1977) FLC ¶90-301; Mathieson & Hamilton [2006] FMCAfam 238; Truscott & Truscott (1986) FLC ¶91-761; Hamilton & Nowak (1988) FLC ¶91-981. [2010] FamCAFC 21.

57.

Marriage of Carpenter (1993) 17 Fam LR 259; (1994) FLC ¶92-444.

58. 59.

FLA s 66L(1). Paul & Paul [2012] FamCAFC 64 at [101].

60. 61.

Ibid at [72]. FLA s 66VA(1).

62. 63.

FLA s 66VA(2). FLA s 66VA(3).

64. 65.

(1996) 21 Fam LR 237 at 244; (1997) FLC ¶92-738. (1996) 21 Fam LR 237 at 246.

66. 67.

(2006) 35 Fam LR 319; FLC ¶93-262. See D Cooper, ‘Is There a Need for a Nexus of Disability and Dependence in Adult Child Maintenance Cases?’ (2007) 28 Queensland Lawyer 70 at 71.

68. 69.

(2006) 35 Fam LR 319 at [114]. B Fehlberg et al, Australian Family Law: The Contemporary Context, 2nd ed, Oxford University Press, Melbourne, 2015, p 470 See also W v W [2002] FamCA 1143 at [37] per Barry J, referred to in Re AM (2006) 35 Fam LR 319 at 341.

70.

See, for example, Marriage of Mercer (1976) 1 Fam LR 11,179; FLC ¶90-033; Marriage of Gamble (1978) 4 Fam LN 28; FLC ¶90-452. (1979) 7 Fam LR 492; (1981) FLC ¶91-021.

71. 72.

73.

(1979) 7 Fam LR 492 at 504 per Evatt CJ and Murray J. Strauss J also adopted a test of reasonable need. This approach was affirmed by the Full Court in Henderson & Henderson (1989) 13 Fam LR 40; FLC ¶92-011. [2012] FamCAFC 64 at [103].

74. 75.

(1978) 4 Fam LN 28; FLC ¶90-452. (1990) FLC ¶92-178.

76. 77.

(1992) 15 Fam LR 355; FLC ¶92-284. (1992) 15 Fam LR 355 at 367–8.

78. 79.

Marriage of Mercer (1976) 1 Fam LR 11,179; FLC ¶90-033. (1996) 20 Fam LR 761; FLC ¶92-701.

80. 81.

See Cosgrove & Cosgrove (1995) 20 Fam LR 751; FLC ¶92-700. There have been significant changes to Pt VII in both 1996 and 2006, resulting in the substantial renumbering of various provisions, including those dealing with child maintenance. These developments are discussed further in Chapter 8.

82. 83.

(1995) 20 Fam LR 751 at 754. (1992) 16 Fam LR 621 at 635; (1993) FLC ¶92-385 at 79,982.

84. 85.

Cosgrove & Cosgrove (1995) 20 Fam LR 751 at 755. Ibid at 756.

86. 87.

Ibid at 760. See Marriage of Cosgrove (No 2) (1996) 20 Fam LR 761; FLC ¶92-701.

88.

(1996) 20 Fam LR 761 at 765.

89.

(1994) 18 Fam LR 542; (1995) FLC ¶92-583.

90. 91.

(1994) 18 Fam LR 542 at 547. (1996) 21 Fam LR 118; FLC ¶92-714.

92. 93.

(2002) 29 Fam LR 114; FLC ¶93-106. (1992) 16 Fam LR 621; (1993) FLC ¶92-385.

94. 95.

See 4.89ff on the reference of state powers in respect of ex-nuptial children. (1996) 21 Fam LR 118 at 131.

96. 97.

Ibid at 132. (1996) 20 Fam LR 761; FLC ¶92-701.

98. 99.

(1993) 19 Fam LR 35; (1995) FLC ¶92-600. (1995) 19 Fam LR 44; FLC ¶92-601.

100. (1996) 20 Fam LR 761 at 764–5. 101. See Tuck & Tuck (1979) 7 Fam LR 492; (1981) FLC ¶91-021; Marriage of H (1981) 7 Fam LR 451; FLC ¶91-083; Bromwich & Bromwich [2007] FamCA 157. 102. Re C (No 2) (1992) 15 Fam LR 355; FLC ¶92-284. 103. Tynan & Tynan (1992) 16 Fam LR 621 at 640. 104. (1989) 13 Fam LR 40; FLC ¶92-011. 105. (1989) 13 Fam LR 40 at 42. 106. Ibid. 107. Ibid at 42–3. 108. Ibid at 43. 109. Ibid. 110. Ibid. 111. Ibid. 112. (1990) FLC ¶92-178. 113. (1976) 1 Fam LR 11,179 at 11,183; FLC ¶90-033. 114. (1977) 4 Fam LR 252. See also Warnick J in Cosgrove & Cosgrove (1995) 20 Fam LR 751 at 759–60; (1996) FLC ¶92-700. 115. (1977) 4 Fam LR 252 at 254. 116. (1978) FLC ¶90-452 at 11,304. See also (1978) 4 Fam LN 28. 117. (1981) 1 Fam LR 451 at 465; FLC ¶91-083. 118. (1992) 15 Fam LR 355; FLC ¶92-284. 119. (1992) 15 Fam LR 355 at 361. 120. Ibid at 366. 121. (2006) 35 Fam LR 319. 122. D Cooper, ‘Is There a Need for a Nexus of Disability and Dependence in Adult Child Maintenance Cases?’ (2001) 28 Queensland Lawyer 10. 123. For an outline of the Australian law on family provision, see RF Croucher and P Vines, Succession: Families, Property and Death — Texts and Cases, 3rd ed, LexisNexis

Butterworths, Sydney, 2009, Ch 15. 124. (2006) 35 Fam LR 319 at [139]. 125. For a notable example of the extent to which this is true, see Stirling v Dobson (2011) FLC ¶98-056. 126. L Young and S Baxter, ‘The Relevance of the Quality of the Parent–Child Relationship in Awards of Adult Child Maintenance’ (2014) 28 Australian Journal of Family Law 142. 127. [2014] FamCAFC 152. 128. (1978) FLC ¶90-452. 129. (1977) 4 Fam LR 252. 130. (1996) 20 Fam LR 761; FLC ¶92-701. 131. [2014] FamCAFC 152 at [47]–[48]. 132. See Marriage of Gyselman [1991] FamCA 93; (1992) FLC ¶2-279; (1991) 103 FLR 156 at [141]; Archer & Archer (SSAT Appeal) [2013] FCCA 226; BC201309693 at [32]. 133. (1993) 17 Fam LR 259; (1994) FLC ¶92-444. See also Marriage of Cosgrove (No 2) (1996) 20 Fam LR 761; FLC ¶92-701. 134. (1993) 17 Fam LR 259 at 260. 135. Ibid at 260–2. 136. Ibid at 262. 137. FLA s 66L(3). 138. Keltie v Keltie & Bradford (2002) 29 Fam LR 114; FLC ¶93-106. See also In the matter of Dodge & Krapf & Krapf (1991) FLC ¶92-214. 139. (1991) FLC ¶92-218; (1991) 104 FLR 335. 140. FLA s 66M(3)(a). 141. FLA s 66M(3)(b). 142. FLA s 66M(3)(c). 143. FLA s 66M(3)(d). 144. FLA s 66M(3)(e). 145. For a detailed discussion of the case law, see Carnell v Carnell (2006) 36 Fam LR 168; (2006) 204 FLR 122. 146. Ibid. 147. (2006) 204 FLR 122 at [20]. 148. Ibid at [34]. 149. Ibid at [61]. 150. Ibid at [57]. 151. FLA s 66N(a). 152. FLA s 66N(b). 153. Formerly FLA s 66G. 154. (1989) FLC ¶92-017. 155. Ibid at 77,340.

156. Ibid. 157. Ibid. 158. Ibid. 159. (1993) FLC ¶92-333; (1992) 109 FLR 148. 160. (1993) FLC ¶92-333 at 79,533. 161. Ibid at 79,534. 162. (1991) FLC ¶92-214. 163. Ibid. 164. Ibid at 78,447. 165. Ibid. 166. (2002) 29 Fam LR 114; FLC ¶93-106. 167. Western Australia has not referred its powers in respect of the maintenance of children to the Commonwealth; however, via the Child Support (Adoption of Laws) Act 1990 (WA), that state incorporates federal child support law (being the Assessment Act and the Registration and Collection Act) at a state level. 168. The original Act was called the Child Support Act 1988 (Cth), but in 1989 it was renamed the Child Support (Registration and Collection) Act 1988. 169. Family Law Amendment Act 1987 (Cth). 170. B Howe, Child Support: A Discussion Paper on Child Maintenance, Cabinet SubCommittee on Maintenance, AGPS, Canberra, 1986. 171. Ibid, p 11. 172. Ibid, pp 11–12. 173. Ibid, p 7. 174. National Maintenance Inquiry, A Maintenance Agency for Australia, AGPS, Canberra, 1984. 175. See P McDonald, Economic Consequences of Marriage Breakdown, Australian Institute of Family Studies, Melbourne, 1985. 176. B Howe, Child Support: A Discussion Paper on Child Maintenance, Cabinet SubCommittee on Maintenance, AGPS, Canberra, 1986. 177. M Harrison, P McDonald and R Weston, ‘Payment of Child Maintenance in Australia: The Current Position, Research Findings and Reform Proposals’ (1987) 1 International Journal of Law and Family 92. 178. B Howe, Child Support: A Discussion Paper on Child Maintenance, Cabinet SubCommittee on Maintenance, AGPS, Canberra, 1986. 179. The relevant Minister mentioned both as objectives in making an announcement about the Scheme on 24 March 1987, and the Cabinet Sub-Committee on Maintenance’s recommendations made direct reference to protecting the public purse: ibid, p 19. 180. Ibid, p 21. 181. See, for example, T Summerfield et al, ‘Child Support and Welfare to Work Reforms: The Economic Consequences for Single Parent Families’ (2010) 84 Family

Matters 68. 182. See, for example, R Graycar, ‘Family Law and Social Security in Australia: The Child Support Connection’ (1989) 3 Australian Journal of Family Law 70; S Parker, ‘Child Support in Australia: Children’s Rights or Public Interest?’ (1991) 5 International Journal of Law and Family 24. 183. L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [11.8]–[11.26]. 184. P Parkinson (chair), Ministerial Taskforce on Child Support, In the Best Interests of Children — Reforming the Child Support Scheme, Summary Report and Recommendations of the Ministerial Taskforce on Child Support, Canberra, May 2005, p 3, available at www.dss.gov.au (accessed 16 March 2016). 185. Ibid. 186. For a fuller discussion of this and for further references, see T Summerfield et al, ‘Child Support and Welfare to Work Reforms: The Economic Consequences for Single Parent Families’ (2010) 84 Family Matters 68. 187. L Young and G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [11.19]ff. 188. See George Christensen MP, ‘Moves to Create Fairer Child Support System’, 12 August 2015, available at www.georgechristensen.com.au (accessed 29 March 2016). 189. Report of the Standing Committee on Social Policy and Legal Affairs, Commonwealth of Australia, www.aph.gov.au/childsupport (accessed 17 March 2016). 190. Registration and Collection Act s 13. 191. Ibid s 10. 192. See B Howe, Second Reading Speech, Child Support Bill 1988 (Cth). 193. Registration and Collection Act s 3(2). 194. Where a registrable maintenance liability arises under a child support assessment, the Registrar is required to register that liability by entering the particulars of that liability in the Child Support Register: Registration and Collection Act s 24A(1). 195. Registration and Collection Act ss 17, 17A, 18. In relation to registrable overseas maintenance liabilities, see s 18A. 196. Registration and Collection Act s 24. 197. Field & Field (1991) FLC ¶92-227 at 78,566 per Kay J. 198. See Registration and Collection Act s 30(3). 199. See also s 30A of the Registration and Collection Act, which assists payees in situations where overseas countries will not aid with enforcing a child support debt because it is owed to the government. 200. Registration and Collection Act s 38A. 201. Note also the power for the Registrar to end enforcement of the liability under Registration and Collection Act s 38B(1); it would seem this power is rarely exercised.

202. Registration and Collection Act s 113(1)(c). 203. (1995) 20 Fam LR 101; (1996) FLC ¶92-656. 204. (1994) FLC ¶92-510. 205. (1995) 20 Fam LR 101 at 111. 206. Ibid. 207. Deputy Child Support Registrar v Willemse (1994) FLC ¶92-510 at 81,283. 208. (1995) 20 Fam LR 101 at 111. 209. Australian Government, CSA, Facts and Figures 08–09, Commonwealth of Australia, 2009, p 41, available at www.humanservices.gov.au (accessed 11 January 2016). This includes liabilities that have been paid and those that have been discharged. 210. See Deputy Child Support Registrar & Froehlich (1990) 14 Fam LR 526; (1991) FLC ¶92203 (referring to former O 33 r 3 under the Family Law Rules 1984 (Cth)). 211. This includes the power to take a regular specified amount out of a periodic payment made by the third person to the child support debtor: s 72A(1)(g). 212. The Registration and Collection Act s 30A deals with the ‘enforcement of Australian liabilities overseas’ (which includes child support liabilities). 213. Registration and Collection Act s 72C(3). 214. Ibid s 72C(4). 215. See Field & Field (1991) FLC ¶92-227 at 78,566, where it was held that this discretion is not subject to any court supervision and so the court will not interfere with its exercise. 216. Hon C Bowen MP, Minister for Human Services, Media Release, 7 July 2009. 217. In Williams v Child Support Registrar (2009) 109 ALD 343 at [34], Lucev FM rejected a submission that such a power was unconstitutional on the basis that it conflicted with a constitutional right of freedom of movement in and out of the country. 218. Registration and Collection Act s 72D(1(b). 219. Ibid s 72D(1)(c) (and note s 72D(2)). 220. Ibid s 72D(1)(d). 221. Ibid s 72F. 222. Ibid ss 72K–72P. 223. Ibid s 72M(1). 224. Ibid ss 46, 47. 225. Ibid s 46(4). See also s 4(1) (definition of ‘protected earnings rate’) and Child Support (Registration and Collection) Regulations 1988 (Cth) reg 3 (which prescribes the relevant rate by reference to ‘Newstart Allowance’). For ‘Newstart’ rates, see www.humanservices.gov.au (accessed 10 January 2016). 226. Registration and Collection Act s 46(4). 227. Ibid s 58. 228. Ibid s 59. 229. Ibid s 61. 230. See Registration and Collection Act s 44 generally for other situations where

employer withholding will not apply. 231. Registration and Collection Act s 66. 232. Ibid ss 67–69 (and note Pt V generally). 233. Ibid ss 73, 74. 234. Ibid s 76. 235. See Social Security and Veterans Entitlements (Maintenance Income Test) Amendment Act 1988 (Cth) — the relevant provisions were subsequently incorporated into the Social Security Act 1991 (Cth). 236. This exception arises because of the particular rules about parentage where assisted conception technologies are used; see further, Chapter 7. 237. B Mitchell, Australian Child Support Commentary, CCH, ¶45-655. 238. Assessment Act s 18. 239. Ibid s 24. 240. Ibid s 5. 241. Ibid s 25. 242. Ibid s 25(b). 243. Note that if neither parent is resident in Australia, but a child or one of the parties is an Australian citizen, then pursuant to s 69E an application for child maintenance could be brought in Australia: Peters & Peters [2012] FamCAFC 105. 244. Tobin v Tobin (1999) 24 Fam LR 635; FLC ¶92-848. 245. (1996) 21 Fam LR 186; FLC ¶92-716. 246. (1996) 21 Fam LR 186 at 194. See also Re Patrick: An Application Concerning Contact (2002) 28 Fam LR 579; FLC ¶93-096; Ganter v Whalland (2001) 28 Fam LR 260; (2002) DFC ¶95-240; Re Mark (An Application Relating to Parental Responsibilities) (2003) 31 Fam LR 162; FLC ¶93-173. 247. [2014] FCCA 2521. 248. (2003) 31 Fam LR 22. 249. Ibid at 26–7. 250. Assessment Act s 143(1)–(3A). For a discussion, see DRP v AJL (2004) FLC ¶98-022. 251. Assessment Act s 143(3A). 252. Ibid s 143(3B). 253. For examples of how this discretion has been exercised see: DRP v AJL (2004) FLC ¶98-022; Forsythe v Latimer [2010] FMCAfam 478; Levine v Levine [2011] FMCAfam 821. 254. (2006) 231 ALR 277; 36 Fam LR 1. 255. (2006) 231 ALR 277 at 303. 256. Magill v Magill (2005) 33 Fam LR 193; (2005) Aust Torts Reports 81-783. 257. See, for example, P v B (Paternity: Damages for Deceit) [2001] 1 Fam Law R 1041. 258. (2006) 231 ALR 277 at 297. 259. Ibid at 285, 290.

260. For discussion of this decision, see L Young and S Shaw, ‘Magill v Magill: Families and Deceit’ (2005) 19 Australian Journal of Family Law 44; L Young, ‘Sex, Lies and Money: The High Court Considers Deceit and Paternity Fraud in Magill v Magill’ (2007) 15 Torts Law Journal 1; N Wikeley and L Young, ‘Secrets and Lies: No Deceit Down Under for Paternity Fraud’ (2008) 20 Child and Family Law Quarterly 81. 261. (2006) 231 ALR 277 at 309, 316. 262. Which must be made in the manner specified by the Registrar from time to time: Assessment Act ss 27, 150A. 263. Ibid s 29(2)(c). 264. O’Hara & McGuiness (1991) 14 Fam LR 723; FLC ¶92-220. 265. Assessment Act ss 30, 31. 266. Ibid s 33(1). 267. Ibid s 34(1). 268. Child Support Legislation Amendment Act 1998 (Cth). 269. Assessment Act s 7A(3)(a). 270. The ‘Child Support Estimator’ is available at www.humanservices.gov.au/customer/dhs/child-support (accessed 11 January 2016). 271. P Parkinson (chair), Ministerial Taskforce on Child Support, In the Best Interests of Children — Reforming the Child Support Scheme, Summary Report and Recommendations of the Ministerial Taskforce on Child Support, Canberra, May 2005, available at www.dss.gov.au (accessed 16 March 2016). 272. Assessment Act s 64. 273. Ibid s 64AF. 274. Ibid s 63AA. 275. Ibid s 63AA(4). 276. Child Support Legislation Amendment Act 1992 (Cth). 277. See Tribunals Amalgamation Act 2015 (Cth). 278. As to the meaning of a ‘question of law’, see: LDME v JMA (SSAT Appeal) (2007) 38 Fam LR 132 at 135–6 per Halligan FM; FLC ¶98-034; Tasman v Tisdall (SSAT Appeal) [2010] FMCAfam 425 at [83]–[90] per Brown FM. 279. There are other circumstances stated in the Assessment Act where the Department can refuse to make a determination: see s 98F (applications that disclose no grounds for change) and s 98J (repeat applications raising no new grounds). These follow the normal review process and do not proceed straight to the Family Court (or the Federal Circuit Court). 280. LDME v JMA (SSAT Appeal) (2007) 38 Fam LR 132; FLC ¶98-034. This decision of Halligan FM provides a good discussion of the role of the AAT. 281. (1991) 15 Fam LR 219; (1992) FLC ¶92-279. See also Saberton & Saberton [2013] FamCAFC 89 at [58]–[60]. 282. (1991) 15 Fam LR 219 at 242. 283. Ibid at 225. 284. See www.humanservices.gov.au (accessed 11 January 2016).

285. Ibid. 286. Marriage of Gyselman (1991) 15 Fam LR 219 at 224–5. 287. (1990) 13 Fam LR 812; FLC ¶92-131. 288. (1991) 15 Fam LR 219 at 225. 289. [2013] FamCAFC 89 at [59]. 290. For discussion of this point, and reference to some first instance decisions that seem to have overlooked this requirement, see L Young, ‘“Special Circumstances” in Child Support Departure Applications and the Very Wealthy’ (2015) 29 Australian Journal of Family Law 24. For further decisions that seem to overlook this point, see, for example, Masoud & Masoud [2013] FamCA 763; Kearney & Dillon [2013] FamCA 630; Parsons & Kidson [2014] FamCA 951; Lao & Lao [2014] FamCA 275 at [65]. 291. Note that the UK Government did attempt to operate a child support scheme that allowed for such vagaries as disparate housing costs; however, the difficulties this (among other things) created in generating assessments was one of the reasons for the spectacular failure of the UK system. 292. (2011) FLC ¶98-056. 293. Ibid at [97] and [175]. This conclusion was obiter because due to agreement about private school fees, there was clearly another ground for departure, and only one ground is required to enable the court to exercise its discretion to change the assessment. 294. For a detailed critique of this decision, see L Young, ‘“Special Circumstances” in Child Support Departure Applications and the Very Wealthy’ (2015) 29 Australian Journal of Family Law 24. It is interesting to note that for a long time the Family Court applied special rules for the super-rich in the context of property settlements, again with some difficulty in justifying the basis of the different treatment of these cases (see 14.25ff): see Figgins v Figgins (2002) 29 Fam LR 544; FLC ¶93-122. However, the Full Court has more recently rejected the notion that mere superwealth alone attracts some special rule in property settlements: see Hoffman & Hoffman [2014] FamCAFC 92; Fields & Smith [2015] FamCAFC 57. 295. [2011] FamCAFC 97. 296. See also Carroll & Maybury [2013] FCCA 288 at [88]–[90]. 297. Child Support Registrar & Crowley [2015] FamCAFC 76. 298. Assessment Act s 117(2)(c)(iii), (iv). 299. (1990) 14 Fam LR 535; (1991) FLC ¶92-204. 300. (1991) 15 Fam LR 149; FLC ¶92-262. 301. (1991) 15 Fam LR 219; (1992) FLC ¶92-279. 302. (1997) 23 Fam LR 569; FLC ¶92-786. See also Mulvena v Mulvena (1999) 24 Fam LR 452; FLC ¶98-006. 303. (1997) 23 Fam LR 569 at 572. 304. Ibid at 573. 305. Ibid at 574.

306. Ibid at 573–4. 307. Ibid at 574. 308. (1991) 15 Fam LR 219 at 231. 309. (1991) 14 Fam LR 683; FLC ¶92-210. 310. (1991) 14 Fam LR 796; FLC ¶92-235. 311. (1990) 13 Fam LR 822; FLC ¶92-136. 312. (1991) 15 Fam LR 219 at 231–2. 313. Ibid at 236–7. 314. Ibid at 237. 315. Ibid. 316. (1991) 15 Fam LR 219 at 228–9. 317. (1991) 14 Fam LR 907; FLC ¶92-249. 318. (1991) 14 Fam LR 910; FLC ¶92-248. 319. (1991) 15 Fam LR 219 at 228. 320. Ibid at 228–9. 321. See the Child Support Guide at http://guides.dss.gov.au/child-support-guide (accessed 17 March 2016). 322. G Monahan and L Young, Family Law in Australia, 6th ed, LexisNexis Butterworths, Sydney, 2006 p 451. 323. [2005] FMCAfam 261. 324. Ibid s 117(2)(c)(iii). 325. See, for example, Berry & Berry (1990) 14 Fam LR 215; FLC ¶92-155; Marriage of Cleary (1991) 15 Fam LR 245; (1992) FLC ¶92-278; Marriage of Sloan (1994) 18 Fam LR 249; FLC ¶92-507; Christian & Donald (2004) 39 Fam LR 547; (2008) FLC ¶93367. 326. See Registration and Collection Act ss 71A, 71B and 71C. 327. (1990) 13 Fam LR 812; FLC ¶92-131. 328. (1990) 13 Fam LR 812 at 819. See also Woolley v Carney (2005) 33 Fam LR 294. 329. See Mansfield & Mansfield (1991) 14 Fam LR 531; FLC ¶92-206. 330. (1992) 15 Fam LR 615; FLC ¶92-309. 331. (1992) 15 Fam LR 615 at 624. See also Carey & Carey (1994) 18 Fam LR 116; FLC ¶92-489. 332. (1998) 23 Fam LR 396; FLC ¶92-816. 333. (1998) 23 Fam LR 396 at 431. 334. L Young, ‘Earning Capacity and Child Support: The Fascination with Motivation Continues’ (2004) 10(4) Current Family Law 178. 335. P Parkinson (chair), Ministerial Taskforce on Child Support, In the Best Interests of Children — Reforming the Child Support Scheme, Summary Report and Recommendations of the Ministerial Taskforce on Child Support, Canberra, May 2005, [12.7], available at www.dss.gov.au (accessed 16 March 2016).

336. For a detailed critique of this provision, see L Young and N Wikeley, ‘“Earning Capacity” and Maintenance in Anglo-Australian Family Law: Different Paths, Same Destination?’ (2015) 27 Child and Family Law Quarterly 129. 337. Report of the Standing Committee on Social Policy and Legal Affairs, From Conflict to Cooperation: Inquiry into the Child Support Program, Commonwealth of Australia, August 2015, Recommendation 10, www.aph.gov.au/childsupport (accessed 17 March 2016). 338. Child Support Registrar & Ahern [2014] FamCAFC 105. 339. Marriage of Best (1993) 16 Fam LR 937; FLC ¶92-418. For an example of this, see Stirling v Dobson (2011) ¶FLC 98-056. 340. See Marriage of Gyselman (1991) 15 Fam LR 219; (1992) FLC ¶92-279. 341. Marriage of Gilmour (1994) 18 Fam LR 646; (1995) FLC ¶92-591 held there is no threshold matter to be satisfied prior to the exercise of powers under Pt 7 Div 4. See also Liesert v Nutsch (1996) FLC ¶92-665 at 82,877; Marriage of Bryant (1996) 20 Fam LR 575 at 582; MNR v MEA [2004] FMCAfam 619. 342. Assessment Act s 123(2)(a). 343. See Hartnett v Baker (1995) 19 Fam LR 584; FLC ¶92-620. As to whether there is any independent power of the court under this Division to make an order for child support, see G Reithmuller, Australian Child Support Commentary, CCH, ¶17-170. 344. [2004] FMCAfam 119. 345. See G Reithmuller, Australian Child Support Commentary, CCH, ¶17-160 and the decisions referred to therein: R v R (No 1) [2002] FMCAfam 153 and C v G [2002] FMCAfam 361. 346. (1994) 18 Fam LR 249; FLC ¶92-507. 347. Loogman & Loogman (1990) 14 Fam LR 320; FLC ¶92-158. 348. Assessment Act s 84(5). A relevant parenting plan must have been registered before 14 January 2004: see FLA s 63C(6). 349. Assessment Act s 88. 350. Ibid s 92. See further, Marriage of De Smeth (1992) 16 Fam LR 314; (1993) FLC ¶92349. 351. Assessment Act s 93. 352. Ibid s 136. 353. Ibid s 74. 354. Ibid s 142. 355. Ibid s 12(1)(a). 356. Ibid s 12(1)(b). 357. Ibid s 12(1)(c). 358. Ibid s 12(1)(d). 359. Ibid s 12(1)(e); see s 5 for definition of ‘member of a couple’. 360. Ibid s 12(1)(f). 361. Ibid s 12(2), (3)(a).

362. Ibid s 12(3). 363. Ibid s 12(2AA). 364. Ibid s 12(2A), (3A).

[page 784]

12 PROPERTY PROCEEDINGS: PRELIMINARY ISSUES ___________________________

Introduction 12.1 Chapters 12–15 deal with the laws governing the distribution of property on the breakdown of marriage and de facto relationships. There are a number of policy issues relating to both marriage and non-marriage relationships and the law has historically presented some interesting contrasts in their treatment. In 2009 the law reacted to social reality with the implementation of national reforms across Australia, which brought financial disputes following the breakdown of de facto relationships into the federal family law jurisdiction and enabled them to be treated similarly to marital financial disputes. (For the situation in Western Australia, see Chapter 4.) This chapter covers various preliminary issues such as achieving economic justice through property settlement; the historical background to our present laws; the current policy and reform issues; and the power of the courts to alter the property interests of the parties to a marriage or a de facto relationship. Chapter 13 discusses the process for making such orders and the circumstances that result in the Family Court deciding that orders

should (or should not) be made altering the interests of the property of the parties. Chapter 14 examines the process the Family Court embarks on when deciding what orders are appropriate, and, in particular, it covers the adjustment issues that must be taken into account in reaching a property distribution that is both just and equitable. Chapter 15 covers various specific issues relating to property division, including financial agreements, superannuation splitting, third parties, injunctions, bankruptcy, the variation or setting aside of transactions, and property orders.

Achieving economic justice? 12.2 The question of how private law can best achieve economic justice between the parties on marriage breakdown is one that has engendered widespread debate in a number of countries for over 50 years. The recognition of marriage as an [page 785] equal partnership has a strong appeal. Marriage should arguably be regarded as a partnership in which parties make contributions that are different in nature but equally valuable. Societal changes — relevantly, the decrease in the number of parties marrying and the corresponding increase in couples living in de facto relationships — have resulted in the extension of the jurisdiction of the Family Law Act 1975 (Cth) (FLA) to parties to de facto relationships which have broken down, including same-sex couples: see 4.92. Accordingly, the search for economic justice on relationship breakdown is not limited to married couples, but is equally applicable to de facto couples. Stereotypically, however, the economic balance that the law seeks to address is that between

opposite-sex partners. Empirical evidence is yet to emerge regarding the economic consequences of the breakdown of samesex relationships. According to one view, a ‘community of property’ system is the best means of achieving social justice between spouses on marriage or relationship breakdown, both ideologically and institutionally. Under a community of property system, a fixed category of assets is divided equally, with each party receiving a fixed half-share (whether of the pool of property itself or in the form of the monetary equivalent of its value). Such a system operates widely in Europe, in some Canadian provinces, in some states in the United States and, closer to home, in New Zealand.1 It was also one of the two options for reform detailed in the Federal Attorney-General’s 1999 Discussion Paper, Property and Family Law — Options for Change:2 see 12.24. 12.3 1 2

There are two types of community of property systems:

full or immediate, under which joint ownership of community assets commences at the time of marriage; and deferred, under which separate ownership is retained during the currency of marriage, but on separation or divorce the community principle comes into play and certain property is divided equally.

In those countries that adhere to the community model, the marked trend of modern law is to favour deferred community over immediate community.3 A system of deferred community of property means equal division of certain assets. It has the advantages of certainty and predictability. But does it necessarily [page 786]

achieve social justice between the parties? A community of property system with fixed half-shares of certain assets cannot adequately redress imbalances between the parties, such as disparity in their earning capacities and the economic consequences of the ongoing care of children. Consequently, equality of division does not necessarily mean equality of result for the party whose earning capacity and general economic position have been the more affected by the role division in marriage/de facto relationship than that of the other; and he or she may need more than a half-share. Certainty and predictability, therefore, may have to give way to the interests of justice in the individual case. As the Federal Attorney-General received little public support for the community property option as detailed in the 1999 Discussion Paper (see 12.24), reform in this direction is unlikely in the near future. 12.4 The current Australian system of property division on the breakdown of marriage or a de facto relationship is very far removed from a community of property system. Parties have an interest in the property to which they are legally or equitably entitled. Under this system, each party retains separately not only the property that he or she owned before the relationship, but also that property which each acquired in his or her own right during the relationship, and each party has the right to dispose of his or her own separate property. Under the FLA, once a court has determined that it is just and equitable to make an order altering the interests of the parties in property, the Family Court has wide discretionary powers as to the extent and form of the order that will be made. The ultimate aim is for the court to achieve an end result that in all the circumstances is just and equitable. The division of property order is ‘individualised’ to meet the particular circumstances of each case. However, the discretion, though very wide, is not at large and ss 79(4) (for married couples) and 90SM(4) (for couples formerly in de facto relationships) set out the factors to be taken into account

in property distribution. These factors encompass two sets of considerations: past contributions, both financial and nonfinancial; and future prospective factors. Consequently, prospective considerations are an integral part of the current Australian system of property reallocation.

The economic consequences of relationship breakdown 12.5 In reality, many couples are not in a position of financial equality when their relationship breaks down. A marriage or longterm de facto relationship commonly affects the financial position and capacity of one party more than the other, particularly since caring for children often means curtailed employment achievements for one of the parties. Decisions and sacrifices made during a marriage or relationship for the common good of the family often disproportionately affect one party once the relationship ends. Not only has one party’s economic position been affected by the role assumed during the relationship, but future economic potential may be curtailed by continuing childcare responsibilities [page 787] after separation and opportunities foregone during the relationship. The increase in shared parenting and men taking greater responsibility for ‘unpaid work’ may address some but not all of these concerns. In the 1980s and early 1990s, empirical research in Australia and other Western countries identified that women were financially far worse off than men following divorce.4 This, coupled with the landmark Canadian decision of Moge v Moge (Women’s Legal Education and Action Fund, intervener),5 highlighted the invidious

economic position in which many women find themselves following relationship breakdown. These empirical studies indicate that to a large extent the ‘feminisation of poverty’ arises from women dropping out of work or interrupting periods in the workforce due to children and family responsibilities.6 Consequentially, women lose their work skills or their qualifications become outdated, resulting in reduced earning capacity. Frequently these sacrifices have enhanced the earning capacity of the male spouse, thus increasing the asset pool on relationship breakdown and providing the husband/partner with the capacity to earn a substantial income following the breakdown.7 Commencing in the 1980s and continuing through the 1990s, the Family Court of Australia overtly recognised the value of domestic work. In the 1984 case of Mallet v Mallet,8 the High Court emphasised that the homemaker/parent contribution should be recognised ‘not in a token but in a substantial way’, and during the 1990s this shift in understanding was reflected in more generous property settlements for women.9 The Full Court of the Family Court continues to overtly recognise the value of contributions to the welfare of the family, despite the ‘the lack of tangible recognition’ of those contributions and ‘the fact they are not susceptible to a dollar calculation’:10 see 14.15. [page 788] 12.6 However, notwithstanding the fairly generous property settlements during the 1990s, when the Australian Divorce Transitions Project revisited the economic consequences of marital breakdown it found little improvement in the plight of women.11 Weston and Smyth12 summarised the findings as follows: ‘[T]he financial vulnerability of women post-divorce continues to be apparent. For older women at least, this vulnerability is not solely a function of the presence of children in their households; those

living alone also had a relatively high rate of poverty.’13 Other research published at a similar time indicated that the two main ways for women to avoid poverty following divorce were to repartner or re-enter the workforce.14 The first wave of the HILDA (Household, Income and Labour Dynamics in Australia) study was conducted in 2001, and the study continued over a 10-year period thereafter. Participants were re-surveyed over time and at regular intervals.15 This type of evidence gathering was considered particularly effective for understanding economic and social change over time, and, therefore, also particularly apt for an analysis of the economic effects of separation over time. The study examined the short- to medium-term financial consequences of marriage breakdown.16 It found that in the short term after separation, especially for women who had dependent children living with them, the household income dropped substantially. While the income of those women did improve in the six years thereafter, it still remained less than the income of women who had not separated. The reliance of women on government benefits rose following separation, particularly for those without dependent children. For those with dependent children six years after divorce, reliance on benefits was slightly higher than before divorce.17 In contrast, men’s household income increased more after divorce than if they had remained married. The proportion of household income from government benefits fell following separation for men with dependent [page 789] children, and increased slightly for those without dependent children.18 These results were largely consistent with earlier empirical findings.

Extraneous factors resulting in financial disadvantage for women19 12.7 Despite the forgoing, it remains the case that the disadvantage experienced by women post-separation is not solely a product of the matrimonial property system, but also largely the result of economic and social disadvantage experienced generally by women in Australia. Factors — such as women’s paid and unpaid work patterns reflected in their withdrawal, partially or fully, from the workforce after the birth of their first child and their participation thereafter in part-time rather than full-time work — contribute to ongoing economic disparity between men and women in Australian society. Importantly, whether in paid employment or otherwise, women continue to shoulder most of the duty of caring for children, with 2006 Australian Bureau of Statistics figures showing that they spend 8.33 hours per day caring for children whereas men spend only 3.55 hours.20 Evidence suggests that even where women do return to employment following the birth of a child, shouldering what Easteal describes as a ‘double shift’,21 they may be regarded as lessthan-ideal employees, for whom the commitment to child care and the needs of the home are considered more important than commitment to work. They may therefore be considered less worthy of advancement or permanency. Thus, women are generally paid less than men, are segregated into or overrepresented in lower-paying industries, and struggle to gain seniority due to issues of lack of employment continuity, because of child-care commitments and discrimination. The ongoing gender pay gap between men and women reflects this. Evidence from the Workplace Gender Equality Agency indicates the gender pay gap is currently 17.9 per cent and has hovered between 15 per cent and 19 per cent for the past two decades.22 While women’s participation in the workforce

[page 790] has increased substantially in the past four decades — and, at August 2015, 89.5 per cent of women, as opposed to 83.4 per cent of men held a Year 12 educational qualification — their workforce patterns reflect overrepresentation in lower-paying positions, less demanding roles, part-time or casual employment, and a reduced continuity in employment in comparison to men. For example, the Australian Bureau of Statistics Gender Indicators at August 2015 reflect that 78.3 per cent of males and 65.1 per cent of females are employed. However, of the females, 43.4 per cent are employed part time, whereas only 14.6 per cent of males are employed part time.23 Although, as illustrated, extraneous factors contribute to the impoverishment of women, it is incumbent on society and government to formulate a system of distributing property on relationship breakdown that ameliorates rather than exacerbates the situation.

Historical background 12.8 It is necessary to place the current law and its policy in historical context. A feature of the law’s development in this area, as in so many others, has been the decline in importance of the general law and its replacement by statutory schemes. This pattern was initially more pronounced in relation to matrimonial property than property of non-married relationships; however, state-based statutory schemes now exist across Australia in relation to property distribution upon de facto relationship breakdown. With the exception of Western Australia, these state-based schemes have now become less relevant because of the operation of federal de facto relationship legislation. Considering first the property rights within marriage, the stages

of the law’s development may be summarised as follows. The common law doctrine of ‘unity of property’, or ‘unity of husband and wife’, rendered a wife incapable of owning property in her own right. Equity subsequently developed certain devices (trusts) to ameliorate, at least in part, the absolute nature of the wife’s disability at common law. In the late nineteenth century, legislation created the system of a married woman’s separate property. However, legal capacity to acquire and retain separate property during marriage does not solve the problem that role division within marriage normally prevents one party from having the capacity to acquire as much property as the other. 12.9 The law of trusts proved to be an imperfect tool with which to achieve economic justice for the homemaker spouse on the breakdown of marriage. Achieving that justice was the objective of the introduction in the latter part of [page 791] the twentieth century of statutory schemes giving the courts wide discretionary powers to redistribute assets between husband and wife, overriding existing legal or equitable rights, in accordance with considerations of past contributions to the marriage partnership (both financial and non-financial) and future needs. More recent debate has centred on whether the discretion has been too broadly conferred by statute and whether judicial discretion is in practice exercised in such a way as to achieve equality of recognition for the parties’ different roles within marriage. The latter part of the twentieth century also saw a number of reform proposals in Australia advocating the enactment of statutory principles that would further structure the exercise of judicial discretion, principally through the imposition of a starting point of equal division of property (or alternatively, a presumption

of equal contribution to the acquisition, conservation or improvement of property and to the family formed by the marriage). However, for various political and other reasons, none of these proposals has as yet crystallised into statute. The following account traces the historical development of matrimonial property law in more detail. 12.10 Historically, at common law a man and his wife became one person on marriage and the principle of ‘unity of property’ applied.24 This did not mean, however, that the husband and wife owned their property jointly. At common law, a husband acquired the right to control and manage his wife’s freehold land in which he took a life interest if she predeceased him and there was a child of the marriage.25 The wife’s personal chattels vested absolutely in the husband, as did any personal property acquired by the wife during marriage. To overcome a wife’s disability to own and control property, particularly where it was feared by her family that her husband might prove to be a spendthrift, various equitable devices were resorted to. Property was conveyed to the ‘separate use’ of the wife to prevent the husband from dealing with it. In case her husband should seek to put pressure on her to let him have access to such separate property, equity developed the ‘restraint upon anticipation’, whereby she was prevented from dealing with the capital that had been conveyed to her separate use. 12.11 However, these devices were invented by and for the propertied classes; they could be of no benefit to the majority of the population. Consequently, [page 792] during the latter part of the nineteenth century there was a gradual movement towards the assertion of a claim to women’s

equality before the law in matters of property and contract. This culminated in the Married Women’s Property Acts in England, notably those of 187026 and 1882.27 The former extended the concept of separate property to apply to a married woman’s own earnings, while the latter first provided that women should be able to retain all their own property as separate property, and, second, gave women the right to enter into contracts and to sue and be sued if they were a ‘femme sole’ (unmarried woman). This arguably ended the first and longest chapter in the legal inequality of women. The Australian colonial legislatures largely followed the English example and each state subsequently enacted legislation approximating to the Imperial statute of 1882.28 12.12 The Married Women’s Property Act 1882 (UK), together with its Australian equivalents, was a significant development in the emancipation of women. It completed the process begun by the Divorce Act 1857 (UK),29 which provided that property acquired after a decree of judicial separation by a married woman would be considered her separate property, and brought about a state of formal equality between men and women in matters of ownership. As a result: … [a] general system of separation of property was introduced, under which women … fell under a regime of complete independence of title to property, while all property accruing after that date to women already married was equally their own.30

As well as changing the substantive law, the 1882 Act and its equivalents introduced a summary procedure whereby husband and wife (no longer one person in law) were able to go before a court to have any property disputes between them determined. The summary procedure introduced by the 1882 Act provides, to cite a typical modern example (from South Australia, which is similar in its terms to all other jurisdictions except Victoria), that: (1) In any question between husband and wife as to the title to or possession of property, either party or any other person interested may apply to the court. (2) The court may make such order with respect to the property in dispute as such court shall think fit.

[page 793] (3) Any order made under the provisions of this section shall be subject to appeal in the same manner as any other order or judgment of the court. (4) Any application under this section may be heard in a private room. (5) If any person other than the husband or wife is the applicant, such person shall in the matter of any such application for the purposes of costs or otherwise be treated as a stakeholder only.31

12.13 Section 17 of the Married Women’s Property Act 1882 (UK) and its Australian equivalents, both past and present, were intended to give the courts declaratory powers only; in other words, to determine the dispute between husband and wife on strict principles of law and equity, by declaring existing proprietary rights and granting appropriate consequential relief (the only exception being the Victorian provision.32 Such principles — in particular, the law of trusts — placed heavy emphasis on financial contributions to the acquisition of property and thus commonly operated to the detriment of women, whose economic activities outside the home were curtailed or nonexistent. Nevertheless, motivated by the demands of justice outlined above, in cases such as Jones v Maynard,33 Bendall v McWhirter,34 Rimmer v Rimmer35 and Hine v Hine,36 some English courts, particularly the Court of Appeal, developed a body of doctrine that sought to give legal expression to the principle of an economic partnership of husband and wife. In this endeavour, the late Lord Denning played a dominant part. Although arguably dated by the standards of contemporary society, his Honour’s pronouncements on the topic were legally significant at that time: ‘All that has changed now’, he said in Bendall v McWhirter.37 ‘A wife is no longer her husband’s chattel. She is beginning to be regarded by the law as a partner in all affairs which are their common concern.’38 In Rimmer v Rimmer and Cobb v Cobb,39 Lord Denning propounded the principle that when it was not clear to whom the interest in the matrimonial home belonged, or in what

proportions, then equality was equity. These principles were very persuasively put, but in order to carry them into effect, it became necessary to use a legal instrument that had not been designed to do this job of equalisation. In Hine v Hine, his Lordship described the power of the court under s 17 of the [page 794] UK Act over family assets as ‘entirely discretionary’.40 For a while, the courts developed an approach to the law of declaring resulting, constructive and implied trusts in the context of matrimonial property disputes, the composition of which took account not only of financial contributions to the family, but also of wider contributions to family welfare. 12.14 It seemed at the time as though UK jurisprudence was witnessing a remarkable period of development in which the common law, after a long period of lying fallow, put on a sudden spurt of regeneration, according recognition to changed social and economic conditions. Such a reformist approach reflected well the philosophy of Lord Denning, and he was able to carry with him a sufficient number of his colleagues on the Court of Appeal. After a period of about 15 years, however, the so-called ‘palm tree justice’ came to a sudden halt. In 1965, the House of Lords put an end to the ‘deserted wife’s equity’ in the matrimonial home41 and in 1970–71, the rest of the doctrine fell to the ground with Pettitt v Pettitt42 and Gissing v Gissing.43 In these cases, the House of Lords held that s 17 of the Married Women’s Property Act 1882 conferred no jurisdiction on the courts to transfer a property interest from one spouse to the other. The content of the power of the judge conferred by that section to ‘make such order as he thinks fit’, on which ‘palm tree justice’ had been based, was held to go no further than to declare the interests of the parties on the basis of the usual rules of law

and equity, including the doctrines of resulting trusts. As Lord Dilhorne said in Gissing v Gissing, there ‘is not one law of property applicable where a dispute as to property is between spouses or former spouses, and another law of property where the dispute is between others’.44 It was therefore left to the intervention of statute to give some recognition to the changed economic position of wives in the setting of a modern household.45 12.15 In Australia, ‘palm tree justice’ never had such a good run. The reasoning of the High Court of Australia in the 1956 case of Wirth v Wirth46 anticipated the developments in the UK in the early 1970s. The High Court held that: … the law of property governs the ascertainment of the property rights and interests of those who marry, and those who do not … the title to property and proprietary rights in the case of married persons no less than in that of unmarried persons rests upon the law and not upon judicial discretion.47

[page 795] The same was held by the High Court in the 1959 case of Martin v Martin48 and was followed in state Supreme Court decisions in those jurisdictions where married women’s property rights in state jurisdiction remained, such as Pearson v Pearson,49 Robinson v Robinson50 and Peck v Peck51 (ie all states except Victoria). In any case, the need to attempt to use legislation to achieve a just distribution of property between spouses diminished sooner in Australia than in the UK, with the enactment of the Matrimonial Causes Act 1959 (Cth), which gave courts exercising federal jurisdiction wide powers to distribute property as a remedy ancillary to proceedings for principal relief (divorce or nullity).52 A different and far more revolutionary approach had earlier been adopted by the Victorian legislature.53 By amendment in 1962, the Marriage Act 1958 (Vic) created a presumption of

equality of ownership of the matrimonial home, at least as a starting point.54 Although married women’s property legislation remains in force throughout the states and territories, it is rendered largely inoperative by the provisions contained in Pt VIII of the FLA: ‘Property, spousal maintenance and maintenance agreements’.

The Commonwealth and married couples 12.16 The Commonwealth first entered the field of property distribution on marriage breakdown with the enactment of the Matrimonial Causes Act 1959, nearly 60 years after Federation. Section 86 of that Act gave courts wide powers to order one spouse to make a settlement of property for the benefit of the other spouse or of the children of the marriage. Section 86 provided ancillary relief, which could only be invoked in conjunction with, or following, proceedings for principal relief (dissolution of marriage) under the Act. The provision was intended to be used as a means of rearranging the parties’ property in a just and equitable way, having regard to factors such as means, age, earning capacity and conduct (in relation to which, consideration of marital misconduct obviously became relevant). The constitutional validity of the provision was upheld by the High Court in the 1964 case of Lansell v Lansell.55 [page 796] The Commonwealth FLA received royal assent on 12 June 1975 and came into operation on 5 January 1976. The FLA definition of ‘matrimonial cause’ would determine the extent of the Family Court’s jurisdiction: see 12.29, 1.40–1.43 (regarding the background to the enactment of the FLA) and Chapter 4 (regarding the constitutional limits of the Family Court’s jurisdiction).

Parties to a de facto relationship 12.17 The regulation of relationships outside marriage raises controversial policy issues in contemporary society. In particular, it invites a conflict between the interests of legal paternalism and those of individual autonomy. Contemporary society in Australia has grown increasingly diverse — culturally, racially and ethnically. It can be argued that recognition of diversity requires the law to recognise a variety of different family forms, leaving the individual (who is accorded a high degree of autonomy by contemporary mores) to choose between them. However, the freedom of couples to choose their preferred type of domestic relationship may itself be seen as inhibited by legal regulation, particularly if that regulation imposes on less formal relationships the consequences that attach to marriage.56 12.18 Yet law — and family law in particular — is designed to play a protective role in preventing or reducing exploitation in relationships; it enshrines values that society accords to the disparate roles assumed by partners within a relationship. The law cannot simply abrogate its responsibility to those outside the bounds of formal marriage. However, it is not uncommonly argued that to grant increased legal recognition to relationships outside marriage undermines the value of marriage itself:57 see 5.86–5.90. The jurisprudence of equality does not necessarily provide a straightforward solution to the policy dilemmas in this field. The legal regulation of relationships outside marriage has been seen as raising issues of equality and non-discrimination founded not only on marital status, but also on sexuality.58 Over 20 years ago, the Australian Law Reform Commission analysed the concept of ‘equality’ and rejected formal equality (ie neutral or identical treatment between genders and sexualities) in favour of a ‘difference’ approach, arguing that equal treatment does

[page 797] not necessarily mean identical treatment.59 This view continues to be reflected in the current debate over same-sex marriage: see 4.3. 12.19 Of particular significance to family law has been the question of the extent to which the property rights of unmarried couples should be equated with those who are married. This question raises some difficult dilemmas. On the one hand, the interests of individual autonomy would seem to require that in a pluralist society, parties be free to choose between categories of relationships with substantive legal differences. On the other hand, it can be argued that the law of property adjustment serves exactly the same function on the breakdown of a de facto relationship as a marriage, and so the substance of the two laws should be the same. 12.20 Statute was slower to intervene in property disputes between unmarried couples than those involving parties to marriages. Without statutory intervention, disputes between de facto couples were determined pursuant to the general law, particularly the law relating to trusts.60 Between 1984 and 2008, all states, territories and the Commonwealth legislated to give property rights to opposite- and same-gender de facto couples upon relationship breakdown. Moreover, the legislation in some jurisdictions has also extended statutory rights to other types of domestic relationships: the Australian Capital Territory (relationships involving ‘support of a domestic nature’), New South Wales (close personal relationships), South Australia (close personal relationships), Tasmania (caring relationships) and Victoria (registrable caring relationships). The current state and territory legislation is: Domestic Relationships Act 1994 (ACT); Property (Relationships) Act 1984 (NSW);

De Facto Relationships Act 1991 (NT); Property Law Act 1974 (Qld) (as amended by the Property Law Amendment Act 1999 (Qld)); Domestic Partners Property Act 1996 (SA); Relationships Act 2003 (Tas); Relationships Act 2008 (Vic); and Family Court Act 1997 (WA). In the Australian Capital Territory, New South Wales, Queensland, Tasmania and Victoria, parties can register their relationships.61 [page 798] 12.21 Notwithstanding these statutory developments, the general law retains importance for many married and unmarried couples across Australia for a number of reasons. First, the general law may provide a remedy for partners whose relationship falls outside the statutory regimes. Second, the relevant legislation (if applicable) in all states and territories (except Western Australia)62 does not exclude claims made by de facto partners against each other under the general law. Third, the High Court in Stanford v Stanford63 clearly stated that in order to determine whether it is ‘just and equitable’ to make an order altering interests in property, a court must first identify the existing legal and equitable interests of the parties: see 13.34–13.38. Finally, third parties seeking to establish an interest in the property of the parties to the marriage or relationship usually base such a claim on general law principles: see Chapter 15. Once a de facto relationship is established, on the breakdown of that relationship, the FLA confers exclusive jurisdiction in respect of financial matters arising between the parties to the relationship: s 90RC. Throughout the 1990s there were unsuccessful calls for the

creation of a nationwide uniform law through a reference of powers by the states.64 Following the partial demise of the crossvesting scheme in 1999 (see 4.93), the Standing Committee of Attorneys-General reconsidered its position and in 2002 agreed to a reference of powers, although disagreement existed as to whether the reference should include same-sex de facto relationships. This was finally achieved by a reference of powers by all states (except Western Australia) and through the use of the Commonwealth’s power over the territories. This resulted in the passage of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) and the commencement of Pt VIIIAB of the FLA on 1 March 2009. Parties who separated prior to this date may, if both parties consent, opt in to the FLA scheme. Western Australia has not referred its powers to the Commonwealth. The Family Court Amendment Act 2002 (WA) amended the Family Court Act 1997 (WA) to insert Pt 5A, which covers de facto relationships. These sections are [page 799] similar to those contained in Pt VIIIAB of the FLA: ‘Financial matters relating to de facto relationships’. 65 12.22 From 1 March 2009, amendments to the FLA66 — and in particular the creation of the new Pt VIIIAB — extended the financial settlement regime, previously only available to married couples under the FLA, to parties to de facto relationships that have broken down.67 This included the making of orders for maintenance (ss 90SE, 90SG), property adjustment (s 90SM) and superannuation splitting (Pt VIIB ss 90MA, 90MT). These provisions also allow de facto couples to enter into (and enforce) binding financial agreements (ss 90UA–90UM) and extend the power of the courts to make orders and injunctions binding third

parties in de facto relationship financial disputes: s 90TA. All these provisions now apply nationally (except in Western Australia).68 Part VIIIAB of the FLA covers de facto relationships involving same-sex as well as opposite-sex couples.69

Policy and reform issues in relation to financial matters 12.23 A number of policy issues have underpinned the more recent debate on the substance of family property law and its possible future direction. Prominent among these is the debate concerning the nature of legal rules themselves. Is a model that vests wide discretion in the courts the best way of achieving justice? Section 79/90SM of the FLA currently confer on the Family Court (and the Federal Circuit Court)70 a broad discretion to make an order altering the parties’ property [page 800] rights where it is ‘just and equitable’ so to do, taking account of a wide range of factors: see Chapter 14. Broad discretion means unpredictability of outcome, which makes accurate advice to clients a problem for practitioners and which may deter the settlement of claims. Moreover, the exercise of discretion arguably gives scope for the unconscious operation of gender bias, which may serve to devalue non-financial contributions to the welfare of the family in comparison to the financial contributions made by the party who is active in the ‘public’ commercial world.71 The way the Family Court exercises its discretion and the precedent value of earlier decisions is discussed in depth in Chapter 14. In particular, 14.4–14.5 consider the Full Court decision of Hoffman & Hoffman72 and the question of the extent to which the court can

develop guidelines or rules that bind the exercise of discretion under s 79. 12.24 Strong criticisms of the discretionary model of property division on marriage breakdown have been voiced by the Australian Law Reform Commission in a number of its reports,73 and by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act.74 Both these bodies recommended the structuring of judicial discretion by statutory enactment of the principle that equal division of property is the starting point. The recommendation was taken up by the Family Law Reform Bill (No 2) 1995 (Cth), which was later suspended due to the 1996 federal election and was not subsequently reintroduced. The recommendation was, however, further examined in the Discussion Paper Property and Family Law — Options for Change,75 released by the Federal Attorney-General in 1999. There were two options canvassed in this Discussion Paper. [page 801] Under the first option (referred to as the ‘separate property’ regime and similar to that currently in existence), the starting point for the distribution of the property would be equal sharing, based on the assumption that each party had contributed equally to the property.76 The court would retain its discretion to depart from the equal sharing. The second (and arguably more radical) option canvassed a ‘community of property’ regime, under which communal assets would be defined to be: first, those assets acquired during the period of cohabitation/marriage by each of the parties, whether in separate or joint names; and second, the net increase in value, over the period of cohabitation/marriage, of all earlier acquired property.77 The second option then proposed that on marriage breakdown, each party would get 50 per cent of

the communal assets and there would be no need to look at contribution. As with the first option, there would also be the ability in the second option to depart from the default position of 50/50 sharing in certain circumstances. Neither property reform option has, to date, been proceeded with. 12.25 Equality as a starting point has, since the inception of the FLA, been central to decision-making in the Family Court: see 14.18–14.20. Perhaps this was in part a reaction to the failure (to date) on the part of the legislature to introduce a principle of halfshares as a starting point in the division of matrimonial property. However, whether such important social reform can be left to an essentially discretionary system that does not reliably establish consistent trends is highly questionable. While it is suggested that the preferable avenue for reform is legislation, attempts to proceed in this direction have not met with success.78 12.26 Thus, unlike the provisions relating to children which have undergone a number of practical and philosophical changes (see Chapter 8), the law in relation to the division of property has not significantly changed since its inception. The most radical reform has been the 2009 referral of powers from the states to the Commonwealth, allowing the Family Court to determine financial proceedings between de facto couples on relationship breakdown. In dividing property between parties on relationship breakdown, the law makes minimal distinctions between married and de facto couples or between opposite- and same-sex couples. This major move is reflective of the law keeping pace with changes in society.79 Empirical [page 802] evidence indicates that, like married couples, while the relationship is intact most opposite- and same-sex couples tend to pool and share their financial resources.80

12.27 The law in relation to the division of property reflects a number of trends that are evidenced in other areas of family law. The promotion of settlements through Family Dispute Resolution is a marked preoccupation of much contemporary law reform, and family property law is no exception. This reflects a trend in the law encouraging parties to move from an adversarial approach to a non-adversarial approach to resolving disputes. The advantages of the private ordering of agreements determining financial outcomes over resolution through contested litigation are obvious (see Chapter 2). However, the goal of reaching agreement must not be uncritically pursued at the expense of the law’s protective role and its duty to redress power imbalances and prevent exploitation (in this context, economic) of the more vulnerable party by the other party.81 An attempt has been made to build safeguards into the law governing the making of orders by consent and the formation of binding financial agreements, which oust the general jurisdiction of the court: see 15.35ff. In the context of spousal maintenance and property settlement, Chapters 10 and 14 raise the question as to whether the law’s abandonment of considerations of matrimonial fault in financial proceedings has unwittingly served to obscure the detrimental effects of violence within the family. Should violence be taken into account to a greater degree by courts in the future?82 Could this be done without the wholesale reintroduction of fault considerations into financial proceedings? This is considered in the context of the interpretation of s 79(4)/90SM(4): see 14.37–14.44. Increased recognition of the impact of family violence may require substantive amendments to the FLA.83 12.28 Relevant laws should be designed to achieve justice on the breakdown of relationships through, among other things, proper recognition of the value of the parties’ different contributions. The Family Court has been struggling to strike an appropriate balance between financial and non-financial contributions, but the recent negation of the longstanding doctrine of ‘special contributions’

has gone some way to level the playing field between couples on the breakdown [page 803] of their relationships: see 14.24–14.32. The courts have also been wrestling with redressing the economic consequences of divorce for women, which continue to be poor despite legislative change indirectly related to family law.84 The process for exercising the court’s discretion and the factors that the court will take into account when exercising its discretion are discussed in Chapters 13 and 14. The effects of the 2012 High Court decision of Stanford v Stanford85 have permeated through all aspects of the determination of family law financial disputes, extending from jurisdictional issues, to settling the asset pool, and finally to the process for making orders resolving property matters. It is thus timely to reconsider the existing legislative structure and to reassess the appropriateness of the current framework. Some of the issues that require consideration include the following. 86 1.

2.

The appropriate balance that should be struck between a discretionary scheme, which provides for the exercise of judicial discretion by reference to certain nominated considerations, and one which employs a fixed statutory or formulaic regime: Although the division of property remains discretionary, other areas of family law — for example child support (see Chapter 11) — have moved from a discretionary model to one that is predominantly formulaic. Even in the area of decision-making concerning children, there has been increased statutory guidance as to how the court’s discretion should be exercised: see Chapters 8 and 9. The practical impossibility of comparing the measurable (in the form of financial contributions, direct or indirect) to the immeasurable contributions that can be made to the general

3.

welfare of the family, and the appropriateness or otherwise of maintaining a pretence that this can be accurately accomplished: As flagged above, the rejection of special contributions has gone some way to redressing the loading given to financial contributions as against contributions to the welfare of the family. Recent decisions of the Family Court have seen an upsurge in the partnership approach:87 see 14.50. Whether this approach should be reflected in a presumption of equality tempered with much greater emphasis on prospective factors remains to be considered. With women entering the workforce in greater numbers, how is the Family Court going to meet the challenge of addressing the ‘double shift’ issue; that is, women doing most of the unpaid work at home as well as contributing financially? [page 804]

4.

Where, as is currently the case, there is a list of retrospective factors (s 79(4)/90SM) and a list of prospective factors (s 75(2)/90SF(3)), then what is the respective importance or value that should be accorded to each factor, and whether each particular factor should be retained? Underlying this is the question of what is intended to be achieved by property settlement — reward for contribution, compensation for future needs or retribution for fault. If the answer is that a combination of some or all factors is required, this then begs the question: in what proportions?

Whatever regime is adopted, a holistic approach needs to be taken to the division of property on relationship breakdown. The work of Fehlberg and colleagues indicates the inextricable link between division of property, child support and living arrangements for children.88 The FLA was passed in an era when women were primarily the homemakers and men the

breadwinners. Furthermore, on parental separation children resided with their mothers and spent limited time with their fathers. The full impact of the shared parenting reforms are yet to be felt. With the increase in the numbers of parents entering into shared care arrangements, the law relating to the alteration of property interests will need to adapt accordingly. The incorporation of de facto couples and, significantly, same-sex couples into the FLA will provide additional challenges for a holistic family property regime.

Jurisdiction 12.29 To be considered under the FLA, a property application must come within the definition of ‘matrimonial cause’ in s 4(1) (ca) for married couples, and ‘de facto financial cause’ in s 4(1) for parties to a de facto relationship that has broken down.

Married couples 12.30

Section 4(1)(ca) provides:

(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings — (i) arising out of the marital relationship; (ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or (iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance

[page 805] with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104 …

Paragraphs (eaa) and (f) may also be relevant: (eaa) proceedings with respect to a financial agreement … between the parties to that agreement.89 (f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act; …

Note that this latter paragraph is not limited in terms to proceedings between a husband and wife. Note further that these paragraphs confer jurisdiction in property proceedings both under s 78 of the FLA (for declarations of existing property rights) and under s 79 (for alteration of property rights). For the purpose of maintenance and property proceedings under Pt VIII of the FLA, s 71 defines ‘marriage’ to include a void marriage90 (for a discussion of the difficulties associated with determining what ‘void’ means in this context, see 5.26). Any reference to married persons in the Act also includes those who were married but are now divorced.91 12.31 Proceedings that fall within the definition of ‘matrimonial cause’ can only be instituted under the FLA, which thus supersedes state and territory laws as well as the general law.92 However, the general law remains relevant both to married and de facto couples. The High Court in Stanford v Stanford93 clearly stated that in order to determine whether it is ‘just and equitable’ to make order altering interests in property under the FLA, a court must first identify the legal and equitable interests of the parties: see 13.34–13.38. In addition, the jurisdiction of the Family Court is generally limited to orders required for the purpose of dividing the property of the parties. Third parties seeking to establish an interest in the property of the parties to the marriage or relationship usually base such a claim on general law principles. 12.32 The current definition of ‘matrimonial cause’ in para (ca) essentially arose from changes introduced by the Family Law Amendment Act 1983 (Cth), which broadened the jurisdiction of

the Family Court of Australia. This definition is wide and, moreover, has been generously interpreted by both the Family Court and the High Court. Paragraph (ca)(i) does not restrict property applications to divorce or [page 806] nullity proceedings (those ancillary to principal relief); it creates an independent jurisdiction that may be invoked equally predivorce or post-divorce, provided that the essence of the claim arises from out of the marital relationship.

Arising out of the marital relationship 12.33 Paragraph (ca)(i) does not restrict proceedings by reference to any concept of ‘matrimonial property’. It is an exercise of the ‘marriage’ power in s 51(xxi) of the Constitution, with the requirement that the proceedings arise ‘out of the marital relationship’ providing the required link with that power. The essence of the connection is with the marital relationship, not the property. Proceedings, therefore, can relate to any property, provided that the claim and the entitlement arise out of the marriage (founded in ‘contributions’ during marriage and/or marriage-related ‘needs’). The nature of the claim that arises under para (ca)(i) was explained by the High Court of Australia in the 1986 case of Fisher v Fisher.94 Mason and Deane JJ observed: It is well settled that the constitutional concept of marriage, considered as a head of legislative power, embraces marriage as a relationship. In the exercise of that legislative power, Parliament may regulate the relationship and, subject to the requirement that the law remain one ‘with respect to’ marriage, attach to it such consequences as Parliament considers appropriate. It follows that Parliament may make provision for the alteration of the interests of the parties to a marriage in their property or the property of either of them by reference to considerations arising out of the relationship.95

Also, as Brennan J noted: A proceeding under s 79(1) of the Act arising out of the marital relationship subjects the whole of the property of the spouses to the discretionary jurisdiction of the Family Court.96

Case law on the validity and interpretation of para (ca)(i) has arisen primarily in the context of property applications brought after the termination of marriage by death or divorce. The courts’ readiness to view para (ca)(i) as a source of jurisdiction for postdivorce property applications (with leave), coupled with the generous interpretation accorded to this paragraph, may be considered to render paras (ca)(ii) and (ca)(iii) virtually otiose. In the 1992 case of Marriage of Kowalski,97 the parties were divorced after two years of marriage but thereafter cohabited (without remarrying) for a further [page 807] 12 years. The wife (with leave) brought s 79 proceedings. The Full Court of the Family Court (Nicholson CJ, Nygh and Purdy JJ) held that once the parties had been married, the entire relationship between them fell within the ambit of Pt VIII of the FLA for the purposes of property proceedings, and thus contributions and needs made during and arising from the post-marital cohabitation could be taken into account.98 In reaching this view, the Full Court overruled a number of earlier decisions.99 12.34 In Stanford v Stanford100 the High Court considered whether the Family Court had jurisdiction to make an order for property settlement in respect of an ‘intact’ marriage. The husband and wife had been married for 37 years and had lived together in a house registered in the husband’s name. Both parties had children from their earlier marriages, but they had no children from their relationship. The wife suffered a severe stroke and was later diagnosed with dementia, which required that she

be placed in full-time residential care. She was placed in a highcare facility, the fees for which were paid out of her veterans’ pension. The husband continued living in the former matrimonial home. After her placement, the husband opened an account and paid approximately $42,000 into it, which was to provide additional funds for the wife’s medical, accommodation and other expenses. As neither party had made a decision to separate, the marriage remained intact. The wife, by one of her daughters as case guardian, commenced proceedings under s 79 of the FLA. The Magistrates Court of Western Australia ordered the husband to pay his wife $612,931 (42.5 per cent of the assets). The effect of this decision was that the husband would be obliged to sell the former matrimonial home. The husband appealed to the Full Court of the Family Court. According to the Full Court, it was ‘difficult to ascertain the reason why the magistrate came to her conclusion given the wife did not have a need for a property settlement as such and that her reasonable needs could be met in other ways particularly by maintenance’ (original emphasis).101 The wife died after the hearing of, but before judgment in, the appeal. The Full Court made orders that on the husband’s death, 42.5 per cent of the marital property be paid to the wife’s estate. As a result, until his death (or incapacity) the husband would be in a position to continue living in the matrimonial home. The husband obtained leave and appealed to the High Court. One of the arguments the husband raised was that the Family Court does not have power to make orders for property settlement in respect of an intact marriage. The [page 808] High Court (French CJ, Hayne, Kiefel and Bell JJ) rejected this argument, stating: ‘There was … a proceeding, arising out of a marital relationship, between the parties to the marriage with

respect to the marital property and so a “matrimonial cause” within the definition of that term in s 4(1) of the Act.’102

Proceedings following the death of a party 12.35 In Stanford the High Court (French CJ, Hayne, Kiefel and Bell JJ), relying on s 79(8) of the FLA, considered that when the wife died her application was continued by her legal representatives and thus remained a ‘matrimonial cause’. Problematically, according to the plurality, the Full Court had not correctly applied s 79(8) and it was primarily on this basis that the husband’s appeal was upheld. The section required the court to consider ‘whether it would have made an order with respect to property if the wife had not died and whether it was still appropriate to make an order with respect to property’ (original emphasis).103 According to the High Court, the Full Court had not determined whether it would have made such an order: ‘It was not shown that, had the wife not died, it would have been just and equitable to make a property settlement order. It follows that it was not open to the Full Court to find that it was still appropriate to make an order with respect to property.’104 See Chapter 13 for further discussion of this case. 12.36 The High Court had previously considered the validity of s 4(1)(ca)(i) in the context of s 79(8) of the FLA in Fisher v Fisher105 (see 12.33). Section 79(8) permits property proceedings commenced under the FLA during the joint lifetimes of husband and wife to be continued by or against the legal personal representatives of either party to the marriage, should one (but not both, as the statute is currently formulated) die before proceedings are completed. The High Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) held (unanimously, though for differing reasons) that both para (ca)(i) and s 79(8) are constitutionally valid.106 The Family Court has held that service of the initiating application on the respondent prior to his or her death is not a

condition precedent for the operation of s 79(8); it is the filing, not the service, of an application that begins proceedings and invokes the court’s jurisdiction.107 As Stanford confirms, s 79(8)(b) gives the [page 809] court power to make such order as it considers appropriate, if it is of the opinion that it would have made an order had the death of one party not occurred, and that an order is still appropriate.108

Principal relief, including overseas divorce and nullity 12.37 The second limb of the definition of ‘matrimonial cause’ in s 4(1)(ca)(ii) confers jurisdiction in property proceedings related to proceedings for principal relief. ‘Principal relief’ means applications for divorce, nullity and declarations of the validity of a marriage or of a divorce or an annulment.109 In practice, by far the most important form of principal relief is divorce. This paragraph is clearly a valid exercise of the ‘divorce and matrimonial causes’ power in s 51(xxii) of the Australian Constitution.110 Paragraph (ca)(ii) requires that there be an appropriate relationship between the proceedings for principal relief and the property proceedings. As Gibbs CJ observed in the 1979 case of R v Ross-Jones; Ex parte Beaumont:111 … the proceedings in question must bear an appropriate relationship to the proceedings for principal relief, that is to say, the proceedings with respect to property must be such as can fairly be said to be incidental to the relief obtainable … in the divorce …112

Given the breadth accorded by judicial interpretation to the definition of ‘matrimonial cause’ in para (ca)(i), the necessity for a separate para (ca)(ii) may be questioned. 12.38

The same issues arise in relation to the third limb, para

(ca)(iii), which requires that where property proceedings are in relation to an overseas divorce or nullity decree or legal separation, it must be recognised as valid in Australia under s 104 of the FLA. To summarise briefly, the recognition grounds in s 104 allow an overseas decree to be recognised in Australia if a sufficient connection is established between applicant or respondent and the country granting the decree. Section 104(3) sets out the ‘statutory’ connecting factors: ordinary residence or nationality (in relation to both of these a distinction is drawn between applicant and respondent, with [page 810] the aim of preventing ‘forum shopping’), and domicile. Section 104(5) expressly preserves the operation of the common law recognition rules. Under the common law, a ‘real and substantial connection’ with the overseas country is a sufficient connecting factor113 and recognition will also be afforded on the principle of reciprocity; that is, if facts exist that mutatis mutandis would give Australian courts jurisdiction.114 Section 104(8) embodies the principle of recognition by Australian law of a decree granted in a second overseas country that will be recognised by a first overseas country with which a party can establish connecting factors sufficient under Australian law.115 Finally, under s 104(4), recognition may be refused on grounds of public policy or denial of natural justice. While the details of these complex recognition rules are beyond the scope of the present work, the following should be noted. If an overseas divorce is not recognised under s 104, then para (ca)(iii) has no operation, but it is submitted that, on appropriate facts, a property claim could still meet the requirements of para (ca)(i). In the 1986 case of Caddy & Miller116 (involving a Californian divorce

recognised under s 104), the Full Court of the Family Court (Simpson, Gun and Elliot JJ) considered that para (ca)(i) can be argued as an alternative source of jurisdiction to para (ca)(iii).117 There seems no reason against this argument applying equally where a decree is not recognised.118 12.39 Property proceedings brought in Australia after a foreign divorce may raise issues of forum conveniens. Important considerations include the substance of the matrimonial property regime applying in the foreign jurisdiction, and the enforceability of any order made by the Australian court.119 In the 1995 case of Marriage of De Andrade120 the Family Court (Renaud J) held that the husband, a foreign diplomat, was immune from the Family Court’s jurisdiction under, among other sections, s 79 by reason of the Vienna Convention on Diplomatic Relations.121 [page 811] 12.40 Not all proceedings between husband and wife involving their property or money can necessarily be classified as ‘matrimonial causes’. Examples of actions between spouses that have been held to fall outside the definition of ‘matrimonial cause’ include actions for damages in tort122 and damages for breach of court orders.123 Some partnership claims have also fallen outside the definition of ‘matrimonial cause’.124 While the practical problems arising from the limitations of the Family Court’s jurisdiction in ‘matrimonial causes’ were greatly diminished by the system of cross-vesting, such ‘state-based’ crossvested claims are no longer determinable by a federal court following the 1999 decision of the High Court in Re Wakim; Ex parte McNally.125 12.41 The cross-vesting scheme also overcame limitations on the Family Court’s jurisdiction in ‘matrimonial causes’ where third

parties were involved in family property disputes. A third party (commonly a relative, or a commercial institution) may have loaned money to either or both of the spouses, or may claim an equitable interest in property that is the subject of a dispute between husband and wife. The third party’s claim arises substantively under the general law. In addition, a spouse may have a claim against a third party under the general law as well as a property application against the other spouse. For further discussion on the cross-vesting scheme, as well the accrued and associated jurisdiction of the Family Court, see Chapter 4. To overcome the loss of the cross-vesting scheme in dealing with these third party cases, and to strengthen the power of the court in dealing with third parties, Pt VIIIAA (‘Orders and injunctions binding third parties’) was added to the FLA in late 2004.126 The current ‘third party’ rules are discussed at 15.16ff. 12.42 In addition to Pt VIIIAA of the FLA, there exists one historical exception to the courts’ general inability to make property orders in relation to third parties. Section 79(1)(d) permits an order ‘requiring either or both parties to the marriage … to make, for the benefit … of a child of the marriage, such settlement or transfer of property as the court determines’. The constitutional validity of this provision was upheld by the High Court (Mason CJ, Wilson, Brennan, Dawson and Gaudron JJ) in the 1987 case of Dougherty v Dougherty.127 This provision is not commonly used in practice. The support of minor children is normally effected by means of periodic payments under the Child [page 812] Support Scheme. Applications are, however, sometimes made by adult children who have made contributions to family property, either in the form of money or labour: see, for example, Marriage

of Krotofil128 (a 30-year-old son) and Dougherty & Dougherty (a 29year-old son). In Koch & Koch,129 the Full Court (Watson, Emery and Lindenmayer JJ) stated: There is no obligation on a party to contribute to the building up of an asset for the children of a marriage. Children are entitled to be maintained by their parents, but after their full-time education is complete, except in unusual cases, they have no further claim on their parents.130

Yet in Dougherty, Gaudron J suggested in obiter that in an appropriate case, a claim might be based on the unmet obligations of parents to provide for the long-term welfare of a child.131 Interestingly, the Australian Law Reform Commission recommended back in 1987 that this provision be repealed.132 In spite of this, the provision has survived.

Parties to former de facto relationships 12.43 The terms of referral of powers from the states to the Commonwealth (see 12.21–12.22) limit the jurisdiction of the Family Court in relation to de facto couples. So far as property settlement is concerned for de facto couples, the definition of a ‘de facto financial cause’ is also to be found in s 4(1) of the FLA: … de facto financial cause means: … (c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; …

Thus the Family Court’s jurisdiction in respect of property settlement differs from that in relation to married couples in that it requires that the relationship has broken down. Accordingly, if the parties in Stanford v Stanford133 had been living in a de facto relationship rather than married, as the relationship was ‘intact’ the Family Court would not have had jurisdiction to make orders for property settlement: see 12.34.

[page 813]

De facto couples: threshold conditions 12.44 De facto couples seeking property settlement under the FLA must first demonstrate that they were living in a de facto relationship as defined in s 4AA: see 5.98–5.102.134 Section 4(2A) specifically states that any reference to ‘a party to a de facto relationship includes … a party to a de facto relationship that has broken down’. According to the Full Court in Norton v Locke,135 where there is a dispute as to the nature of the relationship, the court will first need to determine whether a de facto relationship exists before it can determine a financial dispute. In addition to establishing the existence of a de facto relationship,136 a party seeking orders for alteration of property interests must also meet the criteria set out in s 90SB, which requires the court to be satisfied: (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.

Pursuant to s 90SB(a) the total period/s that the parties have lived together in a de facto relationship must amount to at least two years. In Dahl & Hamblin,137 the parties had been in a de facto relationship between 1994 and 1998, and [page 814]

between April 2008 and October 2009. The Full Court of the Family Court (Finn, Coleman and Austin JJ) held that the two periods could be aggregated to establish the requisite two-year period. Parties whose relationship has lasted for less than two years may nonetheless be able to pursue application for property settlement if they are able to meet one of the other criteria in the section. In Lee v Hutton,138 Watts J found that the duration of the parties’ de facto relationship was less than two years, but that Ms Lee’s contributions as partner and homemaker and in the course of the couple’s attempt to have a child amounted to ‘substantial contributions’ for the purposes of s 90SB, such that serious injustice would have been caused had she been unable to pursue her substantive application. 12.45 Under s 90SK of the FLA, the parties to the de facto relationship must also meet the ‘geographical requirements’ for the relevant provisions of Pt VIIIAB to apply.139 Before an order for alteration of property interests can be made under the FLA, a geographical connection to one of the referring states must be established — in other words, the parties must have been living in one or more of the jurisdictions now under the federal legislation; that is, any of the states and territories other than Western Australia. Section 90SK(1) sets out the following requirements: (a) that either or both of the parties were ordinarily resident in a participating jurisdiction when the application for an order was made; and (b) that either:140 (i) both parties were ordinarily resident during at least a third of the relationship in one of the territories or states other than Western Australia; or (ii) the applicant made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

The legislation also provides for an alternative condition, being that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.141

[page 815]

Conclusion 12.46 This chapter has provided the background from a theoretical and practical perspective to the division of property between married couples and couples who were living in a de facto relationship. The two chapters that follow set out the process that the court embarks upon when deciding whether to make an order altering property settlement and, if so, the extent of that order. The final chapter dealing with property division discusses specific issues that may arise in the course of this process. 1.

Property (Relationships) Act 1976 (NZ) (formerly called the Matrimonial Property Act 1976 (NZ)).

2.

D Williams (Attorney-General), Property and Family Law — Options for Change: A Discussion Paper, Australian Government, Canberra, 1999, available via the Australian Parliamentary Library website: www.aph.gov.au (accessed 7 December 2015). Ibid, Ch 3 (this chapter contains a description and evaluation of community systems operating in the United States and New Zealand). See also Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, Ch 7, available via the ALRC website: www.alrc.gov.au (accessed 7 December 2015).

3.

4.

5. 6. 7.

See, for example, Ruth Weston, ‘Changes in Household Income Circumstances’ in Peter McDonald (ed), Settling Up: Property and Income Distribution in Australia, Australian Institute of Family Studies, Prentice Hall, Sydney, 1986, p 100; James B McLindon, ‘Separate But Unequal: The Economic Disaster of Divorce for Women and Children’ (1987) 21 Family Law Quarterly 351; Annemette Sorenson, ‘Estimating the Economic Consequences of Separation and Divorce: A Cautionary Tale from the United States’ in Lenore Weitzman and Mavis Maclean (eds), The Economic Consequences of Divorce: The International Perspective, Clarendon Press, Oxford, 1991, p 263. [1992] 3 SCR 813. Peter McDonald, Settling Up: Property and Income Distribution on Divorce in Australia, Australian Institute of Family Studies, Melbourne, 1986. For further discussion, see Marcia Neave, ‘Living Together: The Legal Effects of the Sexual Division of Labour in Four Common Law Countries’ (1991) 17 Monash University Law Review 14–63; Reg Graycar, ‘Matrimonial Property Law Reform and

Equality for Women: Discourses in Discord?’ (1995) 25 Victoria University of Wellington Law Review 9. 8. 9.

(1984) 156 CLR 605 at 609; 9 Fam LR 449 at 451. See Adiva Sifris, ‘Lump Sum Spousal Maintenance: Crossing the Rubicon’ (2000) 14 Australian Journal of Family Law 1.

10. 11.

Trask & Westlake [2015] FamCAFC 160 at [15]. See www.ada.edu.au/social-science/browse/family-studies/australian-divorce-transitions-project (accessed 20 April 2016). The ‘adult survey’ consisted of a random national telephone survey of 650 divorced Australians conducted in late 1997 by the Australian Institute of Family Studies. It examined the post-divorce circumstances of parents and children, and group of older men and women.

12.

Ruth Weston and Bruce Smyth. ‘Financial Living Standards after Divorce’ (2000) 55 Family Matters 10. Ibid at 14–15. See also Grania Sheehan and Jody Hughes, Division of Matrimonial Property, Research Paper No 25, AIFS, Melbourne, March 2001.

13. 14. 15.

16.

Jody Hughes ‘Repartnering after Divorce: Marginal Mates and Unwedded Women’ (2000) 55 Family Matters 16 at 21. For a detailed discussion of the nature of the survey, see Ruth Weston and Mark Wooden ‘The Hilda Survey and Research on Families’, Paper presented at the Eighth Australian Institute of Family Studies Conference — ‘Step Forward for Families; Research, Practice and Policy’, Melbourne Exhibition Centre, 12–14 February 2003.

17.

Davis De Vaus, Matthew Gray, Lixia Qu and David Stanton, ‘The Economic Consequences of Divorce in Australia’ (2014) 28 International Journal of Law, Policy and the Family 26. Ibid at 32–4, 37–9.

18. 19.

Ibid. I am indebted to Karen King for her assistance with this section.

20.

Australian Bureau of Statistics, 4125.0, Gender Indicators, August 2015, www.abs.gov.au/ausstats/[email protected]/mf/4125.0 (accessed 7 December 2015). For a general discussion of this subject, see Lyn Craig and Killian Mullan, ‘Australian Fathers’ Work and Family Time in Comparative and Temporal Perspective’ (2012) 18(2–3) Journal of Family Studies 165; Lyn Craig and Killian Mullan, ‘How Mothers and Fathers Share Childcare: A Cross-national Time-use Comparison (2011) 76 American Sociological Review 834. Patricia Easteal, ‘Setting the Stage: The “Iceberg” Jigsaw Puzzle’ in P Easteal (ed), Women and the Law in Australia, LexisNexis Butterworths, Sydney, 2010, p 3. See also Lyn Craig, ‘Is There Really a Second Shift and If So, Who Does it? A Time-diary Investigation’ (2007) 86 Feminist Review 149; Alan Hayes, Ruth Weston, Lixia Qu and Matthew Gray, Families Then and Now: 1980–2010, Fact Sheet, Australian Institute of Family Studies, Melbourne, 2010.

21.

22.

Workplace Gender Equality Agency, Gender Pay Gap Statistics, September 2015, www.wgea.gov.au/sites/default/files/Gender_Pay_Gap_Factsheet.pdf (accessed 7 December 2015), based on Australian Bureau of Statistics, 6302.0, Average Weekly

23. 24.

25. 26.

Earnings, Australia, May 2015, August 2015. Australian Bureau of Statistics, 4125.0, Gender Indicators, August 2015, www.abs.gov.au/ausstats/[email protected]/mf/4125.0 (accessed 7 December 2015). This is one aspect of the so-called doctrine or concept of ‘unita caro’. Details of the common law position and subsequent historical developments can be found in W Blackstone, Commentaries on the Laws of England, Book 1, 1765, Ch 15; A Dicey, Law and Public Opinion in England, 2nd ed, MacMillan and Co, London, 1914, pp 371– 95; I Hardingham and M Neave, Australian Family Property Law, Law Book Co, Sydney, 1984, pp 4–9; S Cretney, Principles of Family Law, 4th ed, Sweet & Maxwell, London, 1984, pp 629–33. See R Graveson and F Crane, A Century of Family Law, Sweet & Maxwell, London, 1957, p 197. 33 and 34 Vict, c 93.

27. 28.

45 and 46 Vict, c 75. NSW: 1893; Qld: 1890; SA: 1883–84; Tas: 1883; Vic: 1884; WA: 1892: see I Hardingham and M Neave, Australian Family Property Law, Law Book Co, Sydney, 1984, Ch 2; A Dickey, Family Law, Law Book Co, Sydney, 1985, pp 206–8.

29. 30.

20 and 21 Vict, c 85. A Kiralfy (ed), Comparative Law of Matrimonial Property: A Symposium of the International Faculty of Comparative Law in Luxembourg on the Laws of Belgium, England, France, Germany, Italy and the Netherlands, Sijthoff Leiden, Netherlands, 1972, Ch VI, p 185.

31. 32.

Law of Property Act 1936 (SA) s 105. For an excellent summary of the UK and Australian cases, see WED Davies, ‘Section 17 of the Married Women’s Property Act: Law or Palm Tree Justice?’ (1967–68) 8 Western Australia University Law Review 48.

33. 34.

[1951] Ch 572. [1952] 2 QB 466.

35. 36.

[1953] 1 QB 63. [1962] 3 All ER 345.

37. 38.

[1952] 2 QB 466 at 475. Ibid.

39. 40.

[1955] 2 All ER 696. [1962] 3 All ER 345 at 347.

41. 42.

See National Provincial Bank v Ainsworth [1965] AC 1175. [1970] AC 777.

43. 44.

[1971] AC 886. Ibid at 899.

45. 46.

See Matrimonial Proceedings and Property Act 1970 (UK). (1956) 98 CLR 228.

47.

Ibid at 231–2 per Dixon CJ.

48.

(1959) 110 CLR 297.

49. 50.

[1961] VR 693. [1961] WAR 56.

51. 52.

[1965] SASR 293. Section 86: see below.

53.

See generally, Dorothy Kovacs, ‘Matrimonial Property Law Reform in Australia: The Home and Chattels’ Expedient — Studies in the Art of Compromise’ (1980) 6(3) University of Tasmania Law Review 82. Section 161(4)(b). See also I Hardingham and M Neave, Australian Family Property Law, Law Book Co, Sydney, 1984, pp 264–75.

54. 55. 56.

(1964) 110 CLR 353. Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth), The Family Law Act 1975: Aspects of its Operation and Interpretation, AGPS, Canberra, 1992, [10.42]–[10.43].

57.

Ibid, [10.56]. See also Australian Law Reform Commission (ALRC), Report No 57, Multiculturalism and the Law, AGPS, Canberra, 1992, [5.25] (and submissions in fn 49). ALRC reports may be accessed via the ALRC website: www.alrc.gov.au (accessed 7 December 2015). Australian Law Reform Commission (ALRC), Discussion Paper 54, Equality Before the Law, AGPS, Canberra, 1993, [8.12]–[8.19], [8.44]–[8.53]; ALRC, Report No 67, Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, [2.25], [2.36]–[2.37].

58.

59. 60.

61.

62.

Australian Law Reform Commission (ALRC), Report No 69, Part II: Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, Ch 3. See, for example, Baumgartner v Baumgartner (1987) 164 CLR 137; 11 Fam LR 915; (1988) DFC 95-058; Calverley v Green (1984) 155 CLR 242; 9 Fam LR 940; FLC ¶91565. See Domestic Relationships Act 1994 (ACT); Relationships Register Act 2010 (NSW); Relationships Act 2011 (Qld); Relationships Act 2003 (Tas); Relationships Act 2008 (Vic), Queensland has recently introduced a Bill to provide for civil partnerships: see Relationships (Civil Partnerships) and Other Acts Amendment Bill 2015 (Qld). Family Court Act 1997 (WA) s 205V (‘a de facto partner who is, or was, eligible to apply for an order with respect to property under Division 2 may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property’).

63. 64.

(2012) 247 CLR 108; (2012) FLC 93-518. Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth), The Family Law Act 1975: Aspects of its Operation and Interpretation, AGPS, Canberra, 1992, Recommendations 85–89. See also Australian Law Reform Commission (ALRC), Report No 57, Multiculturalism and the Law, AGPS, Canberra, 1992, [5.26]; ALRC, Report No 69, Part I: Equality Before the Law: Justice for Women, AGPS, Canberra, 1994, [9.55]. These ALRC reports are available via the ALRC website: www.alrc.gov.au (accessed 7 December 2015).

65.

See also Commonwealth Powers (De Facto Relationships) Act 2006 (WA), which

66. 67. 68.

69. 70.

71.

gives the Commonwealth Parliament power to legislate so as to confer upon the Family Court of Western Australia the same jurisdiction and powers in relation to the superannuation interests of de facto couples as it has in relation to married couples under the FLA. However, the Commonwealth refused to accept the referral and thus the Family Court of Western Australia is unable to deal with money in superannuation funds. As amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth). Explanatory Memorandum, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth), House of Representatives, 2008, p 1. Pt VIIIAB of the FLA commenced in the referring states on 1 March 2009, except in South Australia, where it commenced on 1 July 2010. Western Australia has not referred its relevant powers to the Commonwealth. In 2002, Pt 5A was inserted in the Family Court Amendment Act 1997 (Cth). Section 13A(1) of the Interpretation Act 1984 (WA) defines a ‘de facto relationship’ as a marriage-like relationship between two persons and s 13A(2) contains a list of factors indicating whether a de facto relationships exists. See generally, Michael Nicholls, ‘De Facto Financial Claims in Australia’ (2012) 2 Family Law Review 181 at 182. The Federal Circuit Court has concurrent jurisdiction in family law property and children’s matters. The Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court have published a ‘Protocol’ for the guidance of the legal profession and litigants to enable matters to be properly directed to the court most appropriate to hear them: www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/corporate-information/protocol-for-division-of-work-fcoa-fcc (accessed 2 February 2016). See, for example, R Graycar and J Morgan, The Hidden Gender of Law, 2nd ed, Federation Press, Sydney, 2002 (and the references in it). See also H Charlesworth, ‘Domestic Contributions to Matrimonial Property’ (1989) 3 Australian Journal of Family Law 147.

72. 73.

(2014) 51 Fam LR 568; FLC ¶93-591. Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, [363]; ALRC, Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1991, [9.51]–[9.54]; ALRC, Report No 69, Part II: Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, [2.27]–[2.32]. ALRC reports are available via the ALRC website: www.alrc.gov.au (accessed 7 December 2015). See also Australian Parliament, Joint Select Committee on the Family Law Act, Family Law in Australia, AGPS, Canberra, 1980.

74.

Australian Parliament, Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth), The Family Law Act 1975: Aspects of its Operation and Interpretation, AGPS, Canberra, 1992, Recommendation 72, [8.86]–[8.89]. D Williams (Attorney-General), Property and Family Law — Options for Change: A Discussion Paper, Australian Government, Canberra, 1999. See also S Bourke (Commonwealth Attorney-General’s Department), ‘Matrimonial Property Law: A

75.

Discussion of the Reform Option’, An address to a NSW Bar Association public forum, 20 May 1999, both available via the Australian Parliamentary Library website: www.aph.gov.au (accessed 7 December 2015). 76. 77.

D Williams (Attorney-General), Property and Family Law — Options for Change: A Discussion Paper, Australian Government, Canberra, 1999, Executive Summary, [10]. Ibid, Executive Summary, [11].

78. 79.

See, for example, the dicta in Figgins v Figgins (2002) 29 Fam LR 544; FLC ¶93-122. See generally, Adiva Sifris, ‘Lesbian Parenting in Australia: Demosprudence and Legal Change’ in Paula Gerber, and Adiva Sifris (eds), Current Trends in the Regulation of Same-Sex Relationships, Federation Press, Leichhardt, Australia, pp 8–27.

80.

Ruth Weston, ‘Financial Agreements and Personal Income’ in Peter Macdonald (ed), Settling Up: Property and Income Distribution on Divorce in Australia, AIFS, Prentice Hall, Sydney, Australia, 1986, p 131. For a more recent empirical study, although not in Australia, see John Eekelaar and Mavis Maclean, ‘Marriage and the Moral Bases of Personal Relationships’ (2004) 31 Journal of Law and Society 510. See Chapter 2.

81. 82. 83.

84. 85.

See, for example, J Behrens, ‘Domestic Violence and Property Adjustment: A Critique of No Fault Discourse’ (1993) 7 Australian Journal of Family Law 9. For example, on 22 February 2015, the Governor of Victoria appointed a Chair and two Deputy Commissioners to the Royal Commission into Family Violence: see www.rcfv.com.au (accessed 8 December 2015). For example, in 2011 ‘Parental Leave Pay’ was introduced and in 2013 ‘Dad and Partner Pay’ was introduced. (2012) 247 CLR 108; (2012) FLC 93-518.

86. 87.

I am indebted to Karen King for her assistance in formulating this list of factors. See Nareeda Lewers, Helen Rhoades and Shurlee Swain, ‘Judicial and Couple Approaches to Contribution and Property: The Dominance and Difficulties of a Reciprocity Model’ (2007) 21 Australian Journal of Family Law 123.

88.

89.

See Belinda Fehlberg, Christine Millward and Monica Campo, ‘Parenting Arrangements, Child Support and Property Settlement: Exploring the Connections’ (2010) 24 Australian Journal of Family Law 214. See Abati & Cole [2015] FamCA 185.

90. 91.

See Marriage of Miller (1983) 9 Fam LR 10; FLC ¶91-328. FLA s 4(2).

92. 93.

FLA s 8(1). (2012) 247 CLR 108; (2012) FLC ¶93-518.

94. 95.

(1986) 11 Fam LR 11; FLC ¶91-767. (1986) 11 Fam LR 11 at 20.

96. 97.

Ibid at 23. (1992) 16 Fam LR 235; (1993) FLC ¶92-343.

98. 99.

(1992) 16 Fam LR 235 at 243. Ibid, referring to the earlier cases of B & B (1985) 10 Fam LR 8; FLC ¶92-610;

Leibinger & Leibinger (No 1) (1986) 11 Fam LR 33; FLC ¶91-727; Skoflek & Baftirovski (1988) 12 Fam LR 55; FLC ¶92-906. 100. (2012) 247 CLR 108; (2012) FLC ¶93-518. 101. (2012) FLC ¶93-518 at [10]. 102. Ibid at [29]. See Robyn Carroll, ‘Family Law, Involuntary Separated Couples and their Property’ in ‘Ageing and the Law’ (2015) 33 Law in Context 87 for a discussion of this decision. 103. Stanford v Stanford (2012) 247 CLR 108; (2012) FLC ¶93-518 at [30]. 104. (2012) FLC ¶93-518 at [53]. 105. (1986) 11 Fam LR 11; FLC ¶91-767. 106. (1986) 11 Fam LR 11 at 17–18 per Gibbs CJ, Wilson J agreeing; at 21 per Mason and Deane JJ; at 23–4 per Brennan J; at 26–7 per Dawson J. 107. Love & Love (1989) 17 Fam LR 263; (1994) FLC ¶92-441; Mason & Mason (1993) 17 Fam LR 269; (1994) FLC ¶92-446; Bolt & Williams (1996) FLC ¶96-662. The parallel provision under Pt VIIIAB for de facto relationships is s 90SM(8): see Nantz & Brettos [2011] FMCAfam 427 at [17]–[18] per Monahan FM. 108. As to the interpretation of s 79(8), see, for example, Allan & Allan (1987) FLC ¶91824; North & North (1987) 11 Fam LR 735; FLC ¶92-831; Marriage of Doyle (1989) FLC ¶92-027; Evans and the Public Trustee (1991) 14 Fam LR 646; FLC ¶92-223; Whitehouse & Whitehouse (2009) Fam LR 319; FLC ¶93-415. 109. FLA s 4. 110. Russell v Russell (1976) 134 CLR 495 (as it was under the earlier Matrimonial Causes Act 1959 (Cth): see Lansell v Lansell (1964) 110 CLR 353). 111. (1979) 141 CLR 504. 112. Ibid at 510. 113. Indyka v Indyka [1969] 1 AC 33; Dornom & Dornom (1984) FLC ¶91-556. 114. Travers v Holley [1953] P 246; 2 All ER 794; 3 WLR 507. 115. Armitage v Attorney-General [1906] P 135 (also cited as Gillig v Gillig). 116. (1986) 10 Fam LR 858; FLC ¶91-720. 117. (1986) 10 Fam LR 858 at 863. 118. See also Cain & Cain (1987) 11 Fam LR 540; FLC ¶91-808. 119. Caddy & Miller (1986) 10 Fam LR 858; FLC ¶91-720; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Marriage of Gilmore (1993) 16 Fam LR 285; Henry & Henry (1995) 20 Fam LR 171; (1996) FLC ¶92-685. See also P Nygh, ‘Voth in the Family Court: Forum Conveniens in Property and Custody Litigation’ (1993) 7 Australian Journal of Family Law 260. 120. (1995) 19 Fam LR 271. 121. Ibid at 272 (the Vienna Convention on Diplomatic Relations is incorporated into Australian law by virtue of the Diplomatic Privileges and Immunities Act 1967–73 (Cth)). 122. Saba & Saba (1984) 9 Fam LR 780; FLC ¶91-579. 123. Rzetelski & Johnson (1988) 12 Fam LR 304; FLC ¶91-945.

124. Tapiolas v Tapiolas (1985) 10 Fam LR 1; McNeill v McNeill’s Transport Pty Ltd (1985) 81 FLR 26; MJH Pty Ltd & Hannes (1990) 14 Fam LR 231. 125. (1999) 198 CLR 511. 126. Part VIIIAA was inserted by the Family Law Amendment Act 2003 (Cth) s 3 and Sch 6(1) and commenced on 17 December 2004. 127. (1987) 11 Fam LR 577; FLC ¶91-823. 128. (1980) FLC ¶90-909. 129. (1977) FLC ¶90-312. 130. Ibid at 76,662. 131. (1987) 11 Fam LR 577 at 590–2. 132. Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, [393]. ALRC reports are available via the ALRC website (www.alrc.gov.au) and the AustLII website (www.austlii.edu.au) (accessed 8 December 2015). 133. (2012) 247 CLR 108; (2012) FLC ¶93-518. 134. See, for example, Regan v Walsh (2014) FCCA 2535; FLC ¶93-614; Cadman v Hallett (2014) 52 Fam LR 149; FLC ¶93-603. 135. (2013) 50 Fam LR 517; FLC ¶93-567. In this case, the Full Court (Bryant CJ, Murphy and Benjamin JJ) upheld an appeal on the grounds that the Federal Magistrate could not grant an interlocutory injunction under s 114(2A) without first establishing the existence of a de facto relationship. 136. See Ricci & Jones [2011] FamCAFC 222, where the Full Court (May, Ainslie-Wallace and Johnston JJ) made it clear that even if s 90SB is satisfied, the existence of a de facto relationship still needs to be proved. See also Holden & Wolff (2014) 52 Fam LR 60; FLC ¶93-621. 137. (2011) Fam LR 229; FLC ¶93-480. In Fenton & Marvel (2013) 51 Fam LR 142; FLC ¶93-550, the Full Court held that the question was not whether the parties were in a de facto relationship on 1 March 2009 (the date of the commencement of Pt VIIIAB), but rather whether the relationship finally ended on or after that date and whether, when aggregating the periods the parties had lived together before and after 1 March 2009, they had lived together for at least two years. 138. Lee v Hutton (2013) 50 Fam LR 322; [2013] FamCA 745. 139. See FLA s 90SD (for maintenance applications) and s 90SK (for property declarations and applications). 140. Section 90SK(2) states that ‘For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship’. 141. FLA ss 90SD(1A), 90SK(1A). Note however that if both parties move to a nonparticipating jurisdiction after separation, s 90RG may prevent the court from making a declaration as to the existence of a de facto relationship.

[page 816]

13 PROPERTY PROCEEDINGS: THE LEGISLATIVE FRAMEWORK ___________________________

Introduction 13.1 Under the Family Law Act 1975 (Cth) (FLA), the Family Court has power to declare and alter the interests of parties to a marriage or (once the relationship has broken down) a de facto relationship in ‘property’. Parts VIII (in respect of married couples) and VIIIAB (in respect of couples who have been living in a de facto relationship) provide the legislative framework for making orders altering the parties’ interests in property. Section 79(1) of the FLA states that a court may make such order as it thinks ‘appropriate’ altering the interests of the parties in property. However, the court’s discretion is not at large; it must be exercised in accordance with the factors set out in s 79(4), which itself incorporates the factors in s 75(2) that were canvassed in Chapter 10 in relation to spousal maintenance. The parallel provisions for parties who have been living in a de facto relationship may be found in s 90SM. So far as de facto relationships are concerned, s 90SM(1) of the FLA mirrors the powers set out in s 79(1), but only applies following the ‘breakdown’ of the de facto relationship: see 12.43. Pursuant to s

79(2)/90SM(3), the court can only make a property adjustment order on being ‘satisfied that, in all the circumstances, it is just and equitable to make the order’. The 2012 High Court decision in Stanford v Stanford,1 which has already been discussed at 12.34–12.35, raised a number of issues concerning the correct legislative pathway for resolving property disputes. This decision will be further examined in this chapter and the chapter that follows. This chapter examines the process required for the court to determine whether any order should be made altering property interests, while Chapter 14 assumes that such a decision has been made and discusses the process for determining the content of such an order. [page 817]

The time limits for bringing an application for property settlement 13.2 Before proceeding with a discussion determining the process for altering property interests, it is important to appreciate that various provisions of the FLA — namely, ss 44(3) and 81 in relation to married couples and ss 44(5) and 90ST in relation to former de facto couples — demonstrate a policy that the financial relationships between the spouses should, wherever possible, be brought to an end within a reasonable time after the formal ending of the marriage or de facto relationship.2

Married couples 13.3

Section 44(3) of the FLA provides that where:

(a) a divorce order has taken effect; or (b) a decree of nullity of marriage has been made;

proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after: (c) in a case referred to in paragraph (a) — the date on which the divorce order took effect; or (d) in a case referred to in paragraph (b) — the date of the making of the decree.

13.4 The consequence of s 44(3) is that property and spousal maintenance proceedings should be commenced within 12 months of a divorce order taking effect or a decree of nullity being pronounced. Nevertheless, s 44(4) provides that leave may be granted to commence proceedings out of time in cases of ‘hardship’. The Full Court has on a number of occasions stressed that the court is not required to undertake a detailed hearing on the merits of the claim. [page 818] The test is whether there is a reasonable claim to be heard.3 In the 1978 case of MacKenzie & MacKenzie,4 the Family Court stated that a court should exercise its leave power ‘liberally’: The very purpose of s 44(4) is to enable the court to grant leave to institute proceedings in order to avoid hardship. The court should exercise this power liberally, but only if it is satisfied that hardship would be caused to an applicant or a child of a marriage if he or she were barred from making a claim for maintenance or relating to property. As against this, the court cannot ignore the policy underlying s 44(3) which is that ordinarily proceedings should be commenced within a year from the date of the [divorce order].5

A similar view was expressed by the Full Court in the 1979 case of Marriage of Whitford,6 in which the court set out a two-stage process for determining leave applications: … on an application for leave under s 44(3), two broad questions may arise for

determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether the Court should grant or refuse leave to institute proceedings.7

Their Honours considered that the meaning of ‘hardship’ in s 44(4) ‘is akin to such concepts as hardness, severity or substantial detriment’.8 The Full Court then held that what is required must be something more burdensome than ‘any appreciable detriment’.9 Relevant matters that the court will consider in deciding to grant leave are ‘the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength of the applicant’s case, and the degree of the hardship which would be suffered unless leave was granted.’10 13.5 Both the Family Court and the Federal Circuit Court have considered the exercise of the discretion whether to grant leave in a number of cases, generally [page 819] ending with a favourable result for the party seeking leave.11 Nevertheless, in the 1999 case of Marriage of Richardson,12 the Family Court (Mullane J) refused leave on an application by a wife who had waited nearly 20 years post-divorce to commence proceedings for property settlement. His Honour held that the wife had not shown that if leave were granted she would be likely to succeed in an application under s 79 of the Act.13 Consequently, it could not be said that there would be hardship to her if leave were not granted.14 An application for leave to commence proceedings out of time cannot be continued after the death of a party. In Anderson & McIntosh,15 the Full Court confirmed that these time limits apply only to a divorce that is granted within Australia.

If a divorce is granted overseas and is recognised according to s 104 of the FLA, leave is not required to apply for property settlement (or maintenance proceedings). This is because, since 2005, s 44(3) refers to a ‘divorce order’ and this means only marriages brought an end under the FLA. In addition to the excepted proceedings listed in s 44(3), according to s 44(3B) the relevant time limit does not apply in respect of setting aside a financial agreement entered into between the parties, although the time limit would apply to financial proceedings instituted after 12 months from the date on which the financial agreement was set aside.16 Financial agreements are discussed in Chapter 15.

Parties to former de facto relationships 13.6 In relation to couples who were in a de facto relationship, s 44(5) of the FLA requires that an application for maintenance (ss 90SE and 90SG), a property declaration (s 90SL) or property settlement (s 90SM) must be made within ‘two years after the end of the de facto relationship’. This can lead to evidential [page 820] disputes as to the date on which separation took place, which may not be a clear-cut issue:17 see 6.57. As we have seen, married couples must be separated for a 12-month period prior to applying for a divorce and they then have an additional 12 months in which to bring an application for property settlement. It would thus seem that there is no difference in the minimum time period for married and de facto couples to bring an application for property settlement; that is, two years. But in fact, married couples may have a much longer time period as they may be separated for many years before they choose to bring an application for divorce and time begins to run.

An application for leave of the court to initiate property settlement after the two-year period has expired may be made pursuant to s 44(6). Section 44(6) is worded similarly to s 44(4) and the court will adopt a similar approach to applications made under s 44(6). In Montano v Kinross,18 the Full Court confirmed the application of Marriage of Whitford19 (discussed at 13.4) to de facto cases, noting that the court in that case made it clear that no single factor should be treated as determinative in the exercise of the court’s discretion. On that basis their Honours upheld an appeal against a refusal to extend time under s 44(6) which appeared to be based solely on a seven-month delay attributed to the de facto wife’s lawyers.

The finality principle 13.7 The time limits applicable to bringing an application for property settlement are an embodiment of the ‘finality’ or ‘clean break’ principle, set out in s 81 of the FLA, that seeks to end the financial relationship between married spouses provided that such a result is both reasonable and practicable. The section provides: In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.

A similar provision, s 90ST of the FLA, applies in respect of finally determining proceedings between parties to a de facto relationship. [page 821] 13.8 While s 81/90ST is clearly relevant to the making of a property order, it is neither a ‘head of power’ nor an absolute

requirement. This was the view of the Full Court in the 1979 case of Marriage of Crapp (No 2):20 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’. Nevertheless it is true to say that it is unsatisfactory in the general context of the philosophy of the Family Law Act for a really significant issue between parties who are divorced and have gone their separate ways to remain in suspended animation for a number of years.21

The practical effect of s 81 (and presumably s 90ST) is that a court must endeavour to make an order that finalises the financial relationship between the relevant spouses, but it does not require the court to make an order that achieves finality.22 It appears that a court may use s 81 to justify a particular course of action, such as a lump sum order in lieu of periodic payments,23 or a lengthy adjournment pending the occurrence of particular events, such as trust vesting or an inheritance being received.

Declaration of property interests 13.9 Rather than making an order altering the property interests of the parties to the marriage or former de facto relationship, the Family Court may make an order declaring the existing right, title and interests of the parties.24 Such a declaration may be made in relation to only some of the property and orders may be made adjusting interests in other property. Section 78 of the FLA gives the court power to declare the parties’ existing rights in property, and to make consequential orders giving effect to such a declaration. Section 90SL is a similar provision in respect of de facto relationship proceedings; however, it can only be used where a de facto relationship has broken down and not during its subsistence. The time limits that apply to s 79/90SM applications do not apply to declarations under s 78/90SL.

Section 78/90SL is quite different from s 79/90SM, which gives the court a wide discretionary power to alter property rights to effect a just distribution between parties in accordance with the considerations specified in the statute. [page 822] The different operation of these two sections was confirmed in the 2003 Full Court case of Hickey & Hickey25: [Section 78] not allow the court to alter existing rights; such a power is contained in s 79. Thus, a declaration under s 78(1) is an order which determines the existing title or rights of parties to a marriage in respect of property … By contrast s 79 confers power upon the court to make orders altering the interests of parties in property, having regard to the matters referred to in s 79.26 (citations omitted)

13.10 In practice, s 78/90SL is rarely used, most parties invoking the wider powers of s 79/90SM on marriage or relationship breakdown. As the Full Court held in Hickey & Hickey,27 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 property they currently possess:28 Senior counsel for the husband submitted, and we accept, that it has, for unexplained reasons, been fashionable or traditional to use the word ‘declaration’ in the context of this type of paragraph and that this has led to confusion as to the source of the exercise of power. However, it is not a declaration made pursuant to the provisions of s 78 and the use of the word ‘declared’ so far as necessary or possible ought to be avoided. As we have said, the provision is one of several paragraphs or clauses in the s 79 order, not a declaration pursuant to s 78. In order to avoid any confusion, and make clear that it is a single exercise of power, we also accept the submission of senior counsel for the husband that it would be preferable that an order made pursuant to the provisions of s 79 expressly stated that it is by way of alteration of property interests pursuant to s 79 and thereafter set out where necessary in paragraphs or clauses, the relevant provisions of the order.29

Parkinson suggests that following Stanford v Stanford,30 there may be greater scope for using s 78/90SL, as once the legal and

equitable interests of the parties are identified, it may be sufficient to make orders under these sections for the sale or division of jointly owned property.31 See 13.66ff for discussion of Stanford. [page 823] 13.11 In ascertaining the property interests of the parties to be declared under s 78/90SL, the courts apply the ordinary principles of law and equity. Thus the Family Court can make declarations relating to the equitable interests of the parties.32 In the 1976 case of Marriage of Cantarella,33 the Full Court stated: A declaration under s 78 is not a matter of discretion, even though there may be cases where precise calculations are not possible. The principles laid down by the High Court in Wirth v Wirth (1956) 98 CLR 229 make it clear that in disputes between husband and wife relating to property there is to be no ‘palm tree justice’ and a judge in determining those disputes must apply the normal legal principles. As was stated in Pearson v Pearson [1961] VR 693 … there is no fourth category outside the principles of contract, gift or trust which relate to property disputes between married persons.34

However, a declaration is a discretionary remedy, and it has been held that there must be a real contested issue between the parties as to their proprietary rights in order for a declaration to be made under s 78/90SL. In the 1994 case of Marriage of Lanceley,35 the husband (who was facing bankruptcy) did not contest the wife’s application and the Full Court, in agreeing with the trial judge’s decision, held that it would have been wrong to grant a declaration given that there was no ‘proper contradictor’.36 The Full Court stated that ‘this court is not bound to, and indeed properly ought not to, make a declaration where there is no issue between the parties’.37 Section 78(3) originally provided that a declaration made by the court was not binding on third parties, but this fetter was removed through the repeal of the relevant subsection by the Law and Justice Legislation (Amendment) Act 1988 (Cth). The ‘difficult’ question as to whether this permits a declaration to be made

resolving title to property between a spouse and a third party was left open by the Full Court in the 1992 case of Moore & Hendler.38 A decade later, [page 824] in Marriage of Warby,39 in the course of considering the availability of accrued jurisdiction the Full Court stated that ‘[s] 78 of the Family Law Act confers the power to make a declaration with respect to existing title or rights. Since the amendment of the Act in 1988, the provision is not expressly confined to the property of the parties to the marriage or either of them and there is no authority which says that such a declaration may not bind a third party.’40 The addition of Pt VIIIAA enhanced the ability of the court to make orders and injunctions binding third parties.41 This is discussed further in Chapter 15.

An overview of the relevant legislative provisions for dividing property 13.12 Section 79/90SM confers wide powers on the courts to alter the interests in property of parties to marriages and de facto relationships that have broken down. The first limb of s 79(1)/90SM(1) empowers a court to make such orders as it considers appropriate altering the interests of the parties in property. Such orders may include selling the property or transferring the entire property to one party, as well as an order in substitution of rights.42 The second limb of s 79(1)/90SM(1) enables the courts to make orders altering the interests of the trustee in bankruptcy in favour of the party who is not bankrupt. Bankruptcy and the FLA are dealt with in Chapter 15. Section 80(1)/90SS(1) sets out the extensive powers of the court in

exercising its jurisdiction when making orders in respect of property and spousal maintenance. For the purpose of this discussion, s 79/90SM relevantly provides as follows: Alteration of property interests (1) In property settlement proceedings, the court may make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the marriage or either of them — altering the interests of the parties to the marriage in the property; … (2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. … (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition,

[page 825] conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that lastmentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and (e) the matters referred to in subsection 75(2) [and subsection 90SF(3)] so far as they are relevant; and

(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

13.13 Thus the factors contained in s 79(4)(a)–(c)/90SM(4)(a)–(c) require the court to assess both financial and non-financial contributions, as well as contributions to the welfare of the family. This is a retrospective inquiry. It does not matter whether the property to which the contribution has been made has ceased to exist. The factors contained in s 79(4)(e)–(g)/90SM(4)(e)–(g) — with para (e) importing s 75(2)/90SF(3) — direct the inquiry to the future; that is, to prospective factors. These factors may be taken into account when determining property settlements and, as we have seen in Chapter 10, spousal maintenance. Sections 75(2) and (with appropriate wording relating to parties living in a de facto relationship) 90SF(3) provide as follows: The matters to be so taken into account are: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

[page 826] (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party’s role as a parent; and (m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or

[page 827] (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (p) the terms of any financial agreement that is binding on the parties to the marriage; and (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

Despite the extensive number of factors provided, this list is not exhaustive as it contains a ‘catch-all’ section (s 75(2)(o)/90SF(3)(r)) and remains highly discretionary as no statutory direction is given as to the priority or weight to be given to any factor. The exercise of the discretion is discussed at 14.2–14.5 (which covers the process for altering property interests). In addition, s 79(5)– (7)/90SM(5)–(7) allows the court under certain circumstances to adjourn proceedings.43

Dividing property under the FLA 13.14 Prior to the High Court decision in Stanford v Stanford,44 a preferred approach for dividing property under the FLA had developed in the Family Court.45 In 2003 the Full Court in Hickey & Hickey46 outlined this approach, which involved four interrelated steps: Step 1: identify and value the parties’ property, liabilities and financial resources as at the date of the hearing; Step 2: identify and assess the parties’ ‘contributions’ within the meaning of s 79(4)(a), (b) and (c) of the Act and determine the parties’ contribution-based entitlements expressed as a percentage of the net value of the parties’ property; Step 3: identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g) of the Act — including, because of s 79(4) (e) of the Act, the matters referred to in s 79(2) of the Act so far as they are relevant — and determine the

[page 828] adjustment, if any, that should be made to the contributionbased entitlements of the parties determined at Step 2; and Step 4: consider the effects of the findings of Steps 1–3 and resolve what order is just and equitable in all of the circumstances of the case.47 13.15 The approach was not ‘legislatively prescribed’, but it was suggested that a judge who adopted a different approach was required to state reasons for so doing.48 For example, in Amero v Croft,49 the husband successfully appealed against orders granted by a federal magistrate who had failed to properly assess the parties’ contributions or the prospective factors consistent with the four-step process. On appeal, Austin J found that failure to follow the four-step approach made it impossible to assess whether the resulting order could be said to be just and equitable. Both ‘contributions’ and the s 75(2) factors were to be considered in detail. However, in Norman & Norman50 the Full Court pointed out that ‘[f]or all its usefulness and merit as a “disciplined approach” or a “structured process of reasoning” … the “three-step” or “fourstep” approach merely illuminates the path to the ultimate result’. 13.16 Immediately following the High Court decision in 51 Stanford there was some concern that the process outlined in Hickey was significantly affected by this decision. The salient facts of this case are set out at 12.34. As described, the parties’ marriage remained intact; and they were separated only because the wife’s infirmity meant that she required residential care. The wife’s interests were represented by her daughter as case guardian, who obtained on her behalf a property adjustment order at first instance requiring the husband to pay the wife within 60 days of the order a percentage of the value of the former family home. Sadly, the wife died after the appeal to the Family Court was heard but before judgment was delivered. The Full Court upheld the

husband’s appeal, altering the order so that the husband would have a life interest in the former matrimonial home, with the sum ordered by the trial judge to be payable to the wife’s representatives only on the husband’s death.52 The husband then appealed to the High Court on two grounds: see 12.34–12.35, where the first aspect of the appeal — relating to the court’s jurisdiction to grant property settlement orders in the context of an intact marriage — is considered. The second ground of appeal related to the proper consideration of the ‘just and [page 829] equitable’ requirement in s 79(2). While agreeing with the judgment of the Full Court regarding the failure of the magistrate at first instance to consider the implications for the husband of the sale of the family home, the High Court was critical of the Full Court’s approach to the question of whether it was just and equitable to order any form of property settlement in these circumstances. The majority of the High Court (French CJ, Hayne, Kiefel and Bell JJ)53 found that the Full Court had placed insufficient emphasis on the ‘just and equitable’ requirement. According to the High Court, an order for property settlement cannot be made unless the court first determines that it just and equitable to do so. While acknowledging that the phrase ‘just and equitable … does not admit of exhaustive definition [and] it is not possible to chart its metes and bounds,’54 the High Court made it clear that in most cases: … the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship … [T]here is not and will not thereafter be the common use of property by the husband and wife … [T]he express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. (original emphasis)55

The High Court laid down three fundamental principles for the exercise of the discretion pursuant to s 79: First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property … Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. … ‘The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.’ Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. …

[page 830] Third, … [t]o conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. (original emphasis)56

Thus the High Court made clear that s 79(2) and s 79(4) are separate requirements and, in determining whether an order for property settlement is required, they must not be conflated. The majority did not refer to the four steps outlined in Hickey; they did not need to — once a decision was reached that had the wife not died it would not have been just and equitable to make an order for property settlement, there was no reason to discuss the process for altering such interests. However a degree of uncertainty was created as to the status of the ‘four-step’ approach as well as the wider implications of this interpretation of s 79(2) for the division of property. Shortly after the High Court handed down its decision in Stanford, Murphy J in Watson v Ling57 confirmed that the

principles enunciated in Stanford were equally applicable to property settlements arising on the breakdown of de facto relationships. However, it would take some time before the Full Court provided some guidance as to the repercussions of Stanford on the property settlement process generally.

The four-step approach post-Stanford 13.17 Bevan & Bevan (No 1)58 gave the Full Court its first opportunity to provide some guidance as to the practical application of Stanford. The parties had been married for 22 years and had two children when the husband chose to leave Australia. In 1995 the husband had given the wife a power of attorney in respect of their assets and had repeatedly made representations that she could retain all of the Australian property for herself and their children. As a result, the wife dealt with the assets as she saw fit, including managing complex litigation involving the parties’ financial affairs. The parties were divorced in July 2010, and in July 2011 the husband commenced proceedings for property settlement. The trial judge concluded it was just and equitable to make an order altering the interests of the parties in property and divided the property pool 60/40 in the wife’s favour. The Full Court (Bryant CJ and Thackray J in a joint judgment, and Finn J in a separate judgment) upheld the wife’s appeal against this decision,59 finding that although the trial judge purported to undertake a separate consideration of s 79(2), he [page 831] had in fact conflated s 79(2) and s 79(4). In Bevan (No 2)60 the Full Court re-exercised the discretion and held that taking into account

the circumstances surrounding the parties’ informal division of assets, and the extent of the husband’s representations as well as his delay in instituting proceedings, it was not just and equitable to make an order altering property interests. 13.18 In Bevan (No 1), the Full Court acknowledged that the High Court did not disapprove of the four-step approach, but by the same token noted that the High Court had not approved this approach either.61 In Bevan (No 2),62 the Full Court — after extracting senior counsel’s submissions regarding the utility of the four-step approach — specifically stated: ‘We have no issue with what senior counsel has said about the utility of the four-step process, which we accept provides a convenient way to structure both submissions and judgments, provided the caveat mentioned is not overlooked.’63 The caveat was that the three fundamental principles enunciated in Stanford (see 13.16) are not obscured. Thus, the utility of a disciplined or structured approach to property settlement was acknowledged and, following the Bevan litigation, it may be applied.64 However, as will be illustrated below at 13.35, such an approach may involve five rather than four steps. The first of the fundamental principles referred to in Stanford is identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This principle largely corresponds with the first step in the four-step Hickey test: ‘identify and value the parties’ property, liabilities and financial resources as at the date of the hearing’.

The first ‘fundamental principle’: identifying legal and equitable interests in property

13.19 The pool of property available for distribution between parties to a marriage or a former de facto relationship under s 79/90SM of the FLA is not limited by any concept of ‘matrimonial’ or ‘de facto partnership’ assets. The generality of the wording employed in ss 79(1) and 90SM(1), and the definition of ‘property’ in s 4(1), mean that the pool of property to be considered available for distribution encompasses the totality of the parties’ assets.65 Consequently, no distinction is drawn — when identifying the pool of property on which s 79/90SM operates — between socalled ‘matrimonial’ or ‘de facto partnership’ [page 832] assets and ‘business’ assets.66 Accordingly, in the 1985 case of Marriage of Lee Steere,67 the Full Court held that the same principles apply to the alteration of interests in farming properties as apply in other property disputes.68 That is not to say that the manner and timing of the acquisition of property is irrelevant — such factors may be weighty considerations in determining how property should be divided between the parties. However, in this first step of identifying the pool of property to be considered, all of the parties’ property as at the time of trial will be included.

Defining property 13.20

The Act defines ‘property’ in s 4(1)(a) as follows:69

[Property,] in relation to the parties to a marriage or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.

According to Stanford,70 the court must identify the parties’ existing legal and equitable interests in property.71 Therefore, the first question for determination is what constitutes property? In the 1977 case of Marriage of Duff,72 the Full Court held that the

words ‘whether in possession or reversion’ extend the definition, rather than limit it: in other words, the words describe the entitlement and not the property. In Duff itself, the assets in question were shares in a family company (ie choses in action). In that case, the Full Court went further than was strictly necessary on the facts before it, stating that, as a matter of policy, the FLA should [page 833] be construed liberally and widely; that is, that the Act should be effective in practice: The intention of the Act is to provide a code of sufficient scope and flexibility to bring, so far as possible, all the problems attendant upon family breakdown and dissolution of marriage under the jurisdiction of the Family Court of Australia. In our view the Act is to be read and construed widely and liberally with words and expressions being given their ordinary meanings as far as possible and without undue restraint imposed by legal principles more apposite to social conditions markedly different from those which characterise society today.73

13.21 How has the concept of ‘property’ been interpreted in subsequent decisions? On the one hand, the Family Court has held the following to be within the definition of ‘property’: a claim in proprietary estoppel;74 funds held on fixed trust;75 funds held by the Public Trustee as administrator for disabled persons;76 any surplus of property after payment of creditors and the costs of administration of a bankrupt’s estate;77 an option to purchase property;78 an interest in a partnership,79 a prospective inheritance where the testator has lost testamentary capacity since making the will;80and future royalty income streams arising from membership of an entertainment group.81 On the other hand, the following have been held not to constitute ‘property’ for the purposes of the FLA: tortious claims for personal injuries;82 a fund held for an invalid at the trustee’s absolute discretion;83 future superannuation entitlements;84

[page 834] and an income stream arising from future earning capacity.85 There are now specific rules and orders that apply in respect of superannuation entitlements, and these are considered in Chapter 15. As the power to adjust property interests under the FLA operates in personam (against the parties personally) and not in rem (against the property), orders pursuant to ss 79 and 90SM can be made in respect of property wherever it may be located. However, the enforcement of such orders is an entirely different matter. In Galloway & Midden (No 2),86 property in ‘Country F’ registered in third parties’ names but paid for by Ms G was found by the trial judge to be property of the parties and taken to form part of Ms G’s entitlement. The Full Court upheld Ms G’s appeal as the trial judge had not considered how, if at all, Ms G was to transfer the properties into her name. However, even if not considered property, such assets may be taken into account by the courts as a financial resource under s 75(2)/90SF(3).

Financial resources 13.22 The term ‘financial resource’ ‘has been interpreted widely to cover all financial advantages that either are, or likely to be enjoyed by a party’.87 If an asset or right is regarded as a financial resource rather than property, orders cannot be made under s 79/90SM adjusting the interests in this asset or right. The parties’ financial resources are important because the court must consider them in the overall redistribution of property on relationship breakdown: s 75(2)(b)/90SF(3)(b). The term ‘financial resource’ is not defined in the FLA; however, consistent with the policy of the FLA as expressed by the Full Court in Duff88 (see 13.20), the Family Court has given this term a wide meaning. In Crapp & Crapp,89 Fogarty J considered that the

term ‘financial resource’ was wider than ‘property’, as did the Full Court in Kelly & Kelly (No 2).90 Depending on the extent of control a party to the relationship has over the trust, a beneficiary’s interest in a discretionary trust may be treated as property or a financial resource: see 13.23–13.25. A beneficiary [page 835] may anticipate receiving substantial distributions but these may be a considered a ‘financial resource’ rather than property as it is a mere hope or expectancy.91

Companies and discretionary family trusts 13.23 Trusts and companies are commonly employed as means of distributing wealth within a family, protecting assets and minimising taxation. They take a wide variety of forms, determined by the needs of the individual planners. Trusts and companies permit control to be severed from ownership of assets — a company is an entity distinct in law from its shareholders, while the potential beneficiaries under a discretionary trust do not have a proprietary interest in the trust’s assets. Yet a family member may in fact derive substantial financial benefits from assets held by a family company or trust. So far as companies are concerned, the High Court in Ascot Investments v Harper92 stated that, ‘[e]xcept in the case of shams and companies that are mere puppets of a party to a marriage, the Family Court must take the property of a party to a marriage as it finds it’93 (see further discussion of this case at 15.17). Thus, if a company is completely controlled by one or both parties to a relationship, the assets of the company will be taken to be the property of the parties. 13.24

A similar attitude was adopted in relation to discretionary

family trusts, with ‘control’ of the trust by one of the parties to the marriage determining whether the assets held on trust would be regarded as property of the parties. Therefore the capacity of one of the parties to the marriage at the date of trial to unilaterally vest trust property in themselves and thus to potentially own such property in their own right, would result in the Family Court regarding that property as the property of the parties and available for distribution between them. In Ashton & Ashton94 the Full Court held that despite the fact that the trustee was a company in which the husband and his cousin were the shareholders, the trust was controlled by the husband and the trust property was available for distribution. The court held that the power of appointment given to the husband in the trust deed, which permitted the husband to change the trustee, amounted to de facto control of the property. Similarly, in Marriage of Davidson,95 the Full Court confirmed that the husband controlled a trust notwithstanding his endeavours to vary the trust and to substitute a company he controlled instead of himself as the appointor of [page 836] the trust. In Coventry & Coventry & Smith,96 the Full Court held that the husband controlled the trust despite the fact that his mother was the trustee, because the mother acted at her son’s behest. 13.25 In the 2008 case of Kennon v Spry,97 a majority of the High Court held that the assets of the trust, coupled with the trustee’s power of appointment and the wife’s right to due administration of the trust, constituted ‘property’ for the purposes of the FLA. In reaching this conclusion, the majority extended the powers of the Family Court, holding that ‘the property of a discretionary trust established by a husband should be regarded as the property of the parties to the marriage simply because the husband as trustee

could have vested the trust property in the wife during the course of the parties’ marriage’:98 According to the majority: … the property of the parties to the marriage or either of them was to be identified as including the right of the wife to due administration of the Trust, accompanied by the fiduciary duty of the husband, as trustee, to consider whether and in what way the power should be exercised …. [B]ecause, during the marriage, the husband could have appointed the whole of the trust fund to the wife, the potential enjoyment of the whole of that fund was ‘property of the parties to the marriage or either of them’. Furthermore, because the relevant power permitted appointment of the whole of the trust fund to the wife absolutely, the value of that property was the value of the assets of the trust.99

Therefore, the assets of the trust fund fell within the definition of property and thus within the ambit of s 79, such that an order could be made altering the parties’ interests in the trust property. Critically, as the husband was the settlor and trustee of the trust, he had the capacity to vest the assets of the trust in the wife and thus was able to bring these assets within the parameters of s 79. The assets of the trust were therefore capable of forming the basis of orders that the husband make a lump sum payment to the wife. For further discussion in relation to third parties, see 15.17. This decision has been the subject of significant criticism and debate.100 In a recent comment on the Family Court’s approach to discretionary trusts, [page 837] Chief Justice Bryant expressed the view that ‘[t]he law must be dynamic and evolving, and that includes the law of trusts. It is far better, I believe, that trusts law adapt, as it has in the family law jurisdiction, so that justice and equity can truly be done between former partners.’101

Notional property and add backs? 13.26

Associated with the issue of ‘financial misconduct’ (see

14.33–14.36) is the situation where one party seeks to ‘add back’ property into the pool of assets which has been used or dissipated (ie ‘wasted’) by the other party and which amounts to a premature distribution of property to that party. In such circumstances the property that no longer exists is (notionally) added back into the asset pool and (notionally) distributed. In Marriage of Townsend,102 the Full Court determined that wasted property should be notionally added back to the pool of assets. In this case, the husband, following separation, sold a taxi for $148,000 and subsequently spent the funds. The court found that selling the taxi was a premature distribution of marital property and therefore it would be unjust in the extreme to merely treat such conduct by the husband as a matter under s 75(2) of the FLA.103 The taxi, if it had been retained, would have been brought into account as any other item of marital property. Consequently, the Full Court determined that the taxi should be brought ‘into the pool of assets on a notional basis’ and that the court would ‘make a distribution accordingly’.104 In other words, the court acts on the fiction that the party that has dissipated the funds retains the funds in their possession as part of their share of the property. 13.27 The Family Court has been somewhat reluctant to notionally add back assets where monies that existed at separation have been spent on reasonably incurred living expenses.105 Indeed, where the disputed monies have been shown to have been reasonably disposed of, the notional add back approach would be the exception and not the rule.106 The adding back of monies spent on legal fees is commonly argued before the courts. In instances where joint funds are used by one party to pay legal fees, a court may find it appropriate to add back those funds [page 838] spent by that party as a notional asset.107 In the 1998 case of DJM

v JLM,108 as the legal fees had been paid from funds which the court had ordered the husband release to the wife, the court determined that it was appropriate for them to be added back.109 In the 2004 case of Chorn & Hopkins110 the Full Court stated that to determine this issue, it was necessary to consider when and how the funds used to pay the legal fees had been accumulated.111 If the funds had been generated by a party post-separation from the party’s own endeavours, they would not generally be added back, nor would any borrowing by a party post-separation to pay legal fees be considered as a liability in calculating the net property of the parties.112 Where the payment of legal fees can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to add back those costs as a notional asset. Where the funds used have been borrowed, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account.113 Where it is determined that a payment of legal fees should be considered as a notional asset, any outstanding liability in respect of those fees should also be considered.114 13.28 In the 2005 case of Marriage of Omacini,115 the Full Court identified three categories of cases that have emerged where it may be appropriate to notionally add assets back to the pool of property. Relevantly, the Full Court did not suggest that the categories of cases are closed. The three categories identified are: (a) Where the parties have expended money on legal fees [referring to DJM v JLM116 (above)] … (b) Where there has been a premature distribution of matrimonial assets [referring to Marriage of Townsend117 (above)] … (c) In the circumstances outlined by Baker J in [Kowaliw v Kowaliw118 — see 14.35 in relation to the deliberate or reckless wasting of assets] …119

As will be discussed at 14.35–14.36, dissipated funds may also be taken into account when assessing contributions, as well as in a general way under s 75(2)(o)/90SF(3)(r).

[page 839] In Kouper & Kouper (No 3),120 Murphy J distilled the relevant principles relating to notional property into five questions, which Bryant CJ quoted with approval in Shimizu & Tanner.121 This issue was further discussed by Ryan J in Swinton v Barnstable,122 where her Honour succinctly summarised the principles that arose from the relevant cases.123 However, the Family Courts have failed to reach a unanimous view on the principles applicable to notional property. In Mayne & Mayne,124 the federal magistrate had added back the wife’s inheritance of $173,841 which she could not account for, and the members of the Full Court (Faulks DCJ, May and Strickland JJ) adopted three different approaches to notional property. Faulks DCJ considered that the proper approach was to consider the lost inheritance as a s 75(2)(o) factor; Strickland J held that it could be taken into account as notional property, but could not be reconsidered as a s 75(2) factor; and May J regarded it as part of the contributions exercise. The approach to add backs has thus largely been left to the courts’ discretion. However, in Sand & Sand,125 where the only property of the parties was notional property, Coleman J concluded that ‘the court’s jurisdiction is not enlivened’.126

Notional property post-Stanford 13.29 Since the High Court decision in Stanford,127 the status of notional property (add backs) is unclear. It is debatable whether notional property can fall within the definition of ‘existing legal or equitable interests of the parties in the property’ (original emphasis).128 Shortly after the High Court handed down the decision in Stanford, Murphy J in Watson & Ling129 refused to add back the sum of $85,000, which Ms Ling had drawn down on a mortgage and paid to various family members. His Honour considered that such conduct should be taken into account either when assessing contributions or pursuant to s 75(2)(o)/90SF(3)(r).

The Full Court in Bevan (No 1),130 a decision that did not directly deal with add backs, also indicated a preference for utilising s 79(4)/90SM(4) — and in particular s 75(2)(o)/90SF(3)(r) — to take into account property that no longer exists, saying: We observe that ‘notional property’, which is sometimes ‘added back’ to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute

[page 840] ‘property of the parties to the marriage or either of them’, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage — and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.131

Thus while there is no conclusive decision regarding the continued relevance of notional property, there seems to be a preference for utilising contributions or s 75(2)(o)/90SF(3) to adjust the interests in property for property that has been dissipated, rather than adding back these amounts notionally into the asset pool.132 However, in the recent decision of Georgiades & Georgiades,133 the Full Court upheld the decision of the trial judge to add back cash withdrawals totalling $217,800 made in the three years prior to separation.134

Valuing property 13.30 The direction of the High Court in Stanford is for the court to identify the existing equitable and legal interests of the parties.135 The High Court did not expressly refer to valuing those interests. However, in order to determine whether it is just and equitable to alter those interests, and if so in what proportions, it is necessary for all forms of property to be valued. The appropriate date for valuation of the parties’ assets is that of

the trial and not the separation.136 However, the trial judge has discretion in a suitable case to use a different date (such as the date of separation). This was affirmed by the Full Court in the case of Marriage of Omacini:137 [page 841] The starting point is that ordinarily in proceedings under s 79 … the property and financial resources of the parties are valued as at the date of trial … We accept that in a particular case there may be reasons which justify the selection by the trial judge of another date and that in some cases that may be the date of separation of the parties.138

Not surprisingly, the court is often presented with differing valuations for the same asset. In the 2002 case of Marriage of Phillips,139 the Full Court made the following comments about the correct approach in such cases: If a trial judge is unable to accept the opinion of value given by the parties’ experts what he/she cannot do is simply take the mean or average of the two opinions. Further, a trial judge cannot approach the task on the basis that there is an obligation to prefer one opinion over the other. If a trial judge is unable to prefer one opinion over the other then he/she may determine a value having regard to the evidence and the application of proper principle. However, the ability of a trial judge to reach a separate opinion as to value depends on the evidence and other considerations such as the type of property being valued and the appropriate method of valuation. If a trial judge is of the opinion that he/she cannot undertake this task then it is within his/her discretion to require that further evidence be given addressing the issue or in appropriate cases ordering a sale of the relevant item of property. In our view, a trial judge should give reasons why he/she is unable to reach a separate opinion of value where the trial judge has rejected the opinions of the parties’ experts.140

The Family Law Rules 2004 (Cth) provide that (unless there is agreement as to the value of property) parties must exchange market appraisals or valuations for relevant property,141 and also provide for the appointment of a single expert witness, either by the parties142 or by the court on its own initiative,143 who must prepare a written report.144 With the exception of the evidence of a single expert witness, a party must now apply for the court’s

permission to tender a report or adduce evidence at a hearing or trial from an expert witness.145 [page 842]

Liabilities 13.31 When assessing the property available for distribution, debts are usually deducted from the gross value of the parties’ assets.146 So, for example, if the assets of the parties are worth $800,000 and the liabilities amount to $200,000, the net amount available for distribution between the parties will be $600,000. The Family Court is usually concerned only with the net value of the assets of the parties. As a result, the claims of unsecured creditors will take priority over a party seeking an alteration of property interests, but that is not always the case. In circumstances where it is uncertain whether a debt will eventuate (eg a possible income tax liability), the court can assess the potential liability and take it into account. However, this is not the preferred option.147 The court may also choose to ignore or discount the value of unsecured liabilities, or order that one party be entirely responsible for a particular debt.148 For example, it is not uncommon for there to be a dispute after separation as to whether money provided by one of the party’s relatives during the relationship was a gift or a loan. In such circumstances, the court will try to ascertain the reality of the situation by considering the extent to which the evidence supports a claim that a loan existed which would need to be repaid. Equally, uncertain future liabilities may be ignored. In Rosati v Rosati,149 where there were no obvious plans to dispose of the husband’s business, the trial judge declined to take into account potential capital gains tax payable on the possible future sale of the business. The Full Court held that the trial judge was entitled to take the possibility of the future liability into account under s 75(2), rather than deducting it from the asset

pool. The reckless or deliberate wasting of assets through incurring unnecessary debts may also lead the court to make one party solely responsible for a debt. In Adair & Milford,150 for example, the husband was left responsible for an income tax debt in the ‘compelling circumstances’ where, prior to separation, the wife had been unaware of the debt and after separation the husband failed to pay his tax when it fell due. 13.32 The decision in Stanford151 has cast some doubt regarding the ability of the court to take certain liabilities into account. In Bevan (No 1)152 Finn J, commenting [page 843] on the continued relevance of notional property and add backs (see 13.28–13.29), noted that on the same basis (ie that they are not legal or equitable interests) the status of ‘unsecured liabilities’ may also be called into question.153 The premise that liabilities should be shared between the parties is subject to the general principle that financial losses will not be shared where one party has acted ‘recklessly, negligently or wantonly’ in depleting the parties’ assets:154 see 14.35.

Full and frank disclosure 13.33 Division 13.1.2 of the Family Law Rules 2004 (Cth) sets out the duty of disclosure required by parties to a financial case. Parties to an application for property proceedings must make full and frank disclosure of their financial circumstances, including their income (the income from an entity which they fully or partially own or control), property and financial resources. Each party must provide a financial statement (r 13.05). Failure to make full and frank disclosure can attract severe consequences for the party guilty of such conduct. In Weir & Weir,155 the Full Court

found that the husband had deliberately failed to disclose approximately $100,000 of his income. The husband was ordered to pay the wife $50,000, notwithstanding that the court had not made a finding that this amount actually existed. A similar approach was adopted in Chang v Su,156 where the trial judge found that the husband had not made full and frank disclosure. The Full Court upheld the finding of the trial judge that the indeterminate undisclosed amount was held by the husband, thus allowing the court to make property orders without reference to the overall pool.157 The Family Court regards full and frank disclosure very seriously. In Tate v Tate,158 for example, the husband had refused to comply with court orders enforcing full and frank disclosure. The Full Court confirmed that the trial judge’s decision to impose the ultimate penalty — the striking out of the husband’s claim for property settlement — was within the court’s discretion. [page 844]

The second and third ‘fundamental principles’ and the just and equitable requirement 13.34 Mention has already been made of the first fundamental principle emanating from Stanford:159 see 13.19. The second fundamental principle — which may be summarised as: an order altering interests in property must rely on recognised legal principles, and not ‘palm tree’ justice — is relatively uncontroversial. However the third fundamental principle has caused considerable conjecture and debate.160 This principle negates an assumption of an automatic right to property settlement and ‘demands separate consideration of the

preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done’.161

A structured approach: four or five steps? 13.35 Section 79(2)/90SM(3) of the FLA provides that the court should not make an order under these sections ‘unless it is satisfied that, in all the circumstances it is just and equitable to make the order’.162 Prior to Stanford, this was considered the fourth and final step in the four-step process: the court must consider the effects of the findings of Steps 1–3 and resolve what order is just and equitable in all of the circumstances of the case. Following Stanford, the question has arisen as to what point in the inquiry the court should address the question whether it is just and equitable to make an order. In this context, Finn J in Bevan (No 1)163 indicated that there are no hard-and-fast rules in this regard. However, according to her Honour, as a general rule it is ‘useful to identify at a very early point in a judgment what are the existing property interests of the parties and what are the orders that each party is seeking in relation to those interests’.164 Presumably, once that [page 845] information is to hand, the judicial officer will generally be in a position to determine whether it is just and equitable to make any order altering property interests. 13.36 While it is clear from Stanford that the court must consider whether any alteration of property interests is just and equitable, it remains uncertain whether the fourth step in the so-called Hickey approach is still required. That is, should there be a final, holistic

consideration of whether the orders the court proposes to make are just and equitable?165. If this final step is required, then the structured approach is comprised of five rather than four steps. In Chapman & Chapman,166 Murphy and Strickland JJ expressly stated that ‘the nature and form of the property or superannuation interests comprising a party’s entitlement, and not just the dollar value of that entitlement are clearly central to achieving justice and equity as s 79 requires’.167 Thus, Chapman, would seem to suggest that the just and equitable requirement must be met not only as regards the question of whether an order altering property interests should be made; the actual terms of the order must also meet the just and equitable criterion. Thus, if a structured or disciplined approach to property settlement is adopted, it may present as a five- rather than a four-step sequence. However, the court has made it very clear that such an approach is not mandated. While both Stanford and Bevan (No 1) required a thorough and separate consideration of both the s 79(2) and s 79(4) criteria, neither required judges to do so in any particular order. Moreover, the facts of each case would dictate the court’s approach to those issues.168 The High Court’s clear prohibition in Stanford regarding the conflation of s 79(2) and s 79(4) begs the question as to the nature and content of the inquiry that the court must undertake when determining whether it is just and equitable to make any order altering property interests, rather than leaving the interests of the parties to lie as they are. That is, to what extent can the factors in s 79(4) influence the prior decision as to whether it is just and equitable to make an order altering the parties’ interests in property, as opposed to the question of what particular order is made?

The nature of the inquiry 13.37 The s 79(2) requirement was explained by the High Court majority in Stanford as follows: ‘In every case in which a property

settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.’169 A plain reading of this wording indicates that compliance with this section is mandatory. However, in Bevan (No 1), Bryant CJ [page 846] and Thackray J issued a warning against regarding the just and equitable inquiry as a ‘threshold’ issue’, stating that it should rather be considered as ‘permeating the entire process’.170 The court nevertheless conceded that a separate consideration of the ‘preliminary question’ is required ‘before the need arises to consider the extent to which the existing interests are to be altered and the manner in which that it is to be done’.171 In other words, one cannot determine what order to make, before determining the more general question of whether an order should be made at all. Interestingly, while the majority recognised the necessity for two separate inquiries, they suggested that the just and equitable consideration could be resolved either ‘expressly, or by clear implication’.172 The Full Court in Chapman173 also indicated that an express finding was not required and that ‘satisfaction of the s 79(2) requirement can be inferred at least in part from the issues joined and, importantly not joined between the parties.’174 Most recently, in Hearne & Hearne175 the Full Court rejected the husband’s argument that ‘unless a finding is made as to whether it is just and equitable to alter property interests, the court has no power to make such an order.’176 Relying on Stanford, Bevan (No 1) and Chapman, Strickland J concluded that ‘there need not be an express finding that the hurdle of s 79(2) has been overcome; it can be by necessary implication from the totality of the trial judge’s reasons for judgment’.177 In Hearne, the trial judge had failed to expressly find that it was just and equitable to make

orders altering property interests, but the Full Court nevertheless found that such a finding could be, and was, implied from the totality of his Honour’s reasoning. Thus following the decision in Hearne, a court need not make an express finding that it is just and equitable to make order altering property interests — such a finding may be inferred.

The content of the inquiry 13.38 In Bevan (No 1),178 Bryant CJ and Thackray J stated that ‘in determining whether it is just and equitable to make an order altering property interests … it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision’.179 The joint judgment also referred to ‘this requirement to consider s 79(4) matters in [page 847] determining whether it is just and equitable to make any order’,180 thus indicating that it is mandatory to take s 79(4) factors into account when determining the just and equitable requirement. In the later Full Court decision of Chapman,181 Strickland and Murphy JJ unequivocally rejected this approach. The majority — relying on and referring to Stanford — provided a number of examples refuting the assertion that when assessing the just and equitable requirement in s 79(2), it is mandatory to consider s 79(4).182 In a separate judgment in Chapman, Bryant CJ conceded that the joint judgment in Bevan (No 1) may have been guilty of ‘infelicity of expression’,183 resulting in a misunderstanding of what was required. Her Honour confirmed that it was not a requirement that s 79(4) factors be considered when assessing s 79(2). Nevertheless, ‘it would be inappropriate to limit the wide discretion … by requiring the court to ignore the matters referred

to in s 79(4)’, and ‘as long as they are seen as separate and not conflated, the factors in s 79(4) have the potential to inform the decision under s 79(2), along with all other relevant considerations’.184 Thus while conflation is not permitted, as the two sections were ‘intertwined’, s 79(4) considerations may inform the inquiry as to whether it is just and equitable to make any order altering property interests. This approach was shortly afterwards approved by a differently constituted Full Court (Strickland, Ainslie-Wallace and Watts JJ) in Scott & Danton.185 In order to clarify the current state of the law regarding the interrelationship between s 79(2) and s 79(4), Thackray J in Fielding & Nichol186 summarised the position as follows: ‘it is open to a trial judge, in addressing the s 79(2) question, to consider matters that may be seen as arising under s 79(4), but consideration of those matters is by no means conclusive in determining whether the “just and equitable” test has been met.’187 In other words, the s 79(4) factors are among many other factors that a court might take into account in reaching this decision.188 However, this interpretation of Stanford has not been unanimous. In Dekker & Dekker,189 Walters J [page 848] was critical of Bevan (No 1) and Chapman on the basis that a correct interpretation of Stanford demanded that s 79(4) factors should be examined only after the court has concluded that it is just and equitable to make an order.190 Clearly, the Full Court decisions are binding, and so (as he himself acknowledged) the view of Walters J does not represent the current position. However, the issue is a difficult one and we have not expressed a view on the correctness or otherwise of Walters J’s opinion precisely because there was no consensus on the matter among the authors of this book. It is unfortunate that the High Court did not provide more direction on these important matters, not least

because so few family law cases reach that court. No doubt there will be further discussion of this point in coming years in the Full Court.

A summary of the property pathway post-Stanford 13.39 According to Walters J, and assuming a ‘step’- or ‘stage’based approach is used to determine an application for property settlement, an acceptable pathway is as follows.191 1.

2.

3.

4.

Identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property. Ascertain whether it is just and equitable to make an order altering the interests of the parties in their property. It is only after the court has concluded that it is just and equitable to make such an order that it should proceed to take what might be regarded as the third and fourth steps. Such a conclusion may be express or implied from the overall reasoning of the judge. In the course of ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property, it is legitimate to consider the contributions of the parties in all their various guises, but consideration of those matters at this stage of the property settlement ‘exercise’ is not obligatory; still less is that consideration conclusive in determining whether the ‘just and equitable’ test has been met. In the third step, the court should identify and assess the contributions of the parties within the meaning of s 79(4)(a)– (c)/90SM(4)(a)–(c) and determine the contribution-based entitlements of the parties. In the fourth step, the court should identify and assess the

relevant matters referred to in s 79(4)(d)–(g)/90SM(4)(d)–(g), including — because of s 79(4) (e)/90SM(4)(e) — the matters referred to in s 75(2)/90SF(3) so far as they are relevant, and determine the adjustment (if any) that should be made to the [page 849]

5.

contribution-based entitlements of the parties established as a consequence of the previous step. Finally, the court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances.

Throughout the entire property settlement ‘exercise’ described above, the court must bear in mind that the ‘just and equitable’ requirement is neither a ‘threshold issue’ nor some sort of ‘factor’ to be considered wholly within one or more of the steps referred to. Instead, it pervades and informs the entire process.

Conclusion 13.40 Immediately following the handing down of Stanford, it was thought that the impact of this decision on the outcomes in family law cases was going to be enormous. While undoubtedly this decision has had wide implications — especially in identifying the asset pool and elevating equitable principles in family law decision-making — this chapter has illustrated that to a large extent these fears were unfounded. The four-step approach still has utility, although it may have been extended into five rather than four steps. Family Court jurisprudence has indicated that in the vast majority of cases, the question of whether it is ‘just and equitable’ to make an order (at all) will be easily satisfied and the number of cases requiring an in-depth analysis of this requirement

will be few and far between. Moreover, such a finding may be express or implied. Having said this, Stanford has raised — but failed to answer — some very difficult questions about what was once a fairly simple process, leaving a range of issues that need further clarification. On the positive side, the renewed emphasis on the ‘just and equitable’ requirement has to some extent eliminated unmeritorious claims. In the three years since the seminal decision in Stanford, the Family Court has on a number of occasions declined to make orders altering the parties’ interests in property, whereas prior to Stanford, similar factual scenarios would in all probability have attracted orders of the court.192 1.

(2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518.

2.

3.

MacKenzie & MacKenzie (1978) 4 Fam LR 374 at 382 per Strauss J; FLC ¶90-496 at 77,581; Marriage of Whitford (1979) 4 Fam LR 754 at 761; FLC ¶90-612 at 78,145 per Asche, Pawley and Strauss JJ. For a more recent discussion, see Tamaniego v Tamaniego [2010] FamCAFC 254 at [145]–[163] per O’Ryan J. For a discussion of the UK position on the ‘clean break’ principle, see Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618; 3 All ER 1. Marriage of Althaus (1979) 8 Fam LR 169; FLC ¶91-233.

4. 5.

(1978) 4 Fam LR 374; FLC ¶90-496. Ibid at 382; 77,581.

6. 7.

(1979) 4 Fam LR 754 at 761; FLC ¶90-612 at 78,144. Ibid at 759; 78,144. For more recent examples see Richardson & Richardson [2008] FamCAFC 107; Mortimer & Mortimer [2012] FamCA 974; Sharp & Sharp [2011] FamCAFC 150; Morgan & Flanagan [2014] FamCA 348; Stedman v Stedman (No 2) [2015] FamCA 392.

8. 9.

Whitford v Whitford (1979) 4 Fam LR 754 at 759; FLC ¶90-612 at 78,145. Ibid at 760; 78,145.

10. 11.

Ibid at 760; 78,145–6. See also Morgan & Flanagan [2014] FamCA 348. See, for example, Tems & Tems (1990) 100 FLR 472; FLC ¶92-169; Smith & Smith (1990) 14 FamLR 521; FLC ¶92-200; P & P [2002] FMCAfam 341; Khaddour & Jaouhara [2004] FMCAfam 287. For a more detailed discussion, see Geoff Monahan, ‘Time after Time: The Discretion to Allow the Late Commencement of Financial Proceedings Following Relationship Breakdown’ (2007) 81 Law Institute Journal 42.

12. 13.

(1999) 26 Fam LR 523. Ibid at 530.

14.

Ibid at 530, 533; cf Vega & Riggs (No 2) [2015] FamCA 911, where an application for leave to apply for property settlement was brought 20 years after the parties divorced. Watts J found that the parties had been attempting to negotiate a

15. 16. 17.

settlement over this period and that the hardship that the husband would suffer if his application was not granted outweighed the potential prejudice to the wife if the application was granted. (2013) 50 Fam LR 609; FLC ¶93-568. FLA ss 90K and 90KA (and, where relevant, the revocation of the approval of a maintenance agreement under s 87).

18.

See, for example, Cadman & Hallett (2014) FLC ¶93-603; [2014] FamCA 142, where the Full Court (Strickland, Ainslie-Wallace and Aldridge JJ) held that there was no finding as to the date that the relationship ended — rather, there was a finding that on a particular date an intention was formed to end the relationship — and thus the proceedings were actually commenced in time. See also Madin v Palis (2015) FLC ¶93-647; [2015] FamCAFC 65. (2014) FLC ¶93-623; [2014] FamCAFC 231.

19. 20.

(1979) 4 Fam LR 754; FLC ¶90-612. (1979) 5 Fam LR 47; FLC ¶90-615.

21. 22.

Ibid at 68; 78,185. Patfull & Sheldon [2010] FMCAfam 1377 at [27] per Baker FM.

23.

Marriage of Cantarella (1976) 1 Fam LR 11,483 at 11,487; FLC ¶90-056 at 75,232 per Evatt CJ and Asche J; Marshall J agreeing. See Pavone & Pavone [2015] FamCA 100, where Austin J was not satisfied that it was just and equitable to make s 79 orders and instead made orders under s 78.

24. 25. 26.

(2003) 30 Fam LR 355; FLC ¶93-143. Ibid at 369; 78,386.

27. 28.

Ibid at 384; 78,397. Ibid at 372; 78,388.

29. 30.

Ibid at 375; 78,390. (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518.

31.

Patrick Parkinson, ‘Family Property and the Three Fundamental Propositions in Stanford and Stanford’ (2013) 3 Family Law Review 80 at 84. See Arunchalam & Arunchalam [2012] FamCA 26, where the husband and his mother held the legal interest in a parcel of land. The husband sought a declaration of trust that he held his interest on trust for his mother; alternatively, an order pursuant to s 78 that he had no beneficial interest in the property. Neither the mother nor the mortgagee were parties to the proceedings and so would not be bound by orders of the court. Austin J held that the mother and the husband had made equal contributions to the property, so equity would assume they held the property in equal shares. The husband’s one-half interest was included in the asset pool.

32.

33. 34.

(1976) 1 Fam LR 11,483; FLC ¶90-056. (1976) 1 Fam LR 11,483 at 11,489.

35. 36.

(1994) 18 Fam LR 71; FLC ¶92-491. Ibid at 81; 81,112.

37.

Ibid at 85; 81,108.

38. 39.

(1992) 15 Fam LR 770 at 777. (2001) 28 Fam LR 443; FLC ¶93-091.

40. 41.

Ibid at 477; 88,792. FLA Pt VIIIAA was inserted by the Family Law Amendment Act 2003 (Cth) s 3 and Sch 6[1], and commenced on 17 December 2004.

42. 43.

See Collins & Collins (1977) 3 Fam LR 11,424; FLC ¶90-286. See Pratt & Pratt (2012) 47 Fam LR 234; [2012] FamCAFC 81, where the Full Court (Finn, Ainslie-Wallace and Ryan JJ) set out the criteria for the court granting an adjournment.

44. 45.

(2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518. See, for example, Marriage of Lee Steere (1985) 10 Fam LR 431; FLC ¶91-626; Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC ¶92-335; Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92-595; Marriage of Biltoft (1995) 19 Fam LR 82; FLC ¶92-614; JEL v DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075; Marriage of Phillips (2002) 29 Fam LR 128; FLC ¶93-104.

46. 47.

(2003) 30 Fam LR 355; FLC ¶93-143. Ibid at 370; 78,386. See also Marriage of Omacini (2005) 33 Fam LR 134; FLC ¶93-218 at [46] per Holden, Warnick and Le Poer Trench JJ.

48.

Fane-Thompson & Fane-Thompson (1981) 7 Fam LR 660, 660; FLC ¶91-053, 76,433 (Asche, Emery and Bulley JJ); Davut & Raif (1994) 18 Fam LR 237, 244; FLC ¶92-503, 81,238 (Nicholson CJ, Ellis and Renaud JJ). [2010] FamCAFC 118.

49. 50. 51. 52. 53. 54. 55.

56.

[2010] FamCAFC 66 at [60]. See also Martin & Newton [2011] FamCAFC 233 at [305]–[306]. Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518. For the Full Court judgment, see Stanford v Stanford (2012) 47 Fam LR 105; (2012) FLC ¶93-495. Heydon J delivered a separate judgment, but also upheld the appeal. Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518 at [36]. (2012) FLC ¶93-518 at [42]. See, for example, Scott & Danton [2014] FamCAFC 203, where both parties sought a s 79 order. They were no longer living in a marital relationship and they no longer had common use of the home. The Full Court said this was one of the ‘many cases’ where the just and equitable requirement was easily met.

57.

Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518 at [37]–[40]. (2013) 49 Fam LR 303; FLC ¶93-527.

58. 59.

(2013) 49 Fam LR 387; FLC ¶93-545. Ibid.

60.

Bevan & Bevan (No 2) (2014) 51 Fam LR 363; FLC ¶93-572. See also Berrell & Berrell

61. 62.

(No 3) [2013] FamCA 1012, where despite an informal agreement, Kent J concluded that it was just and equitable to make an order altering property settlement. Bevan & Bevan (No 1) (2013) 49 Fam LR 387; FLC ¶93-545 at [65]. Bevan & Bevan (No 2) (2014) 51 Fam LR 363; FLC ¶93-572.

63. 64.

(2014) FLC ¶93-572 at [19]. See also Fielding v Nichol (2014) FLC ¶93-617; [2014] FCWA 77 at [11] per Thackray J.

65. 66.

See generally, Elgin & Elgin [2015] FamCAFC 155. Napthali & Napthali (1988) 13 Fam LR 146; FLC ¶92-021.

67. 68.

(1985) 10 Fam LR 431; FLC ¶91-626. Ibid at 440; 80,076 (Fogarty, Maxwell and Nygh JJ).

69.

FLA s 4(1)(b) contains a similar definition of ‘property’ with respect to the property of the parties to former de facto relationships: ‘[Property,] in relation to the parties to a de facto relationship or either of them, means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.’ Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518.

70. 71.

72.

It is undecided whether, as between the parties to the proceedings, the court may rely on the legal title or whether the court must determine the parties’ equitable interests in property: see Bevan & Bevan (No 1) (2013) 49 Fam LR 387; FLC ¶93-545 at [77]. Michael Kearney suggests that the identification of equitable interests will largely be a matter of discretion: Michael Kearney, ‘Palm Tree Justice in a Post-Bevan World’, Paper presented at the Family Law Intensive, Family Law Section of the Law Council of Australia, Sydney, 5 February 2014. See also Patrick Parkinson, ‘Family Property and the Three Fundamental Propositions in Stanford and Stanford’ (2013) 3 Family Law Review 80 at 90, who distinguishes between pre-existing equitable interests which require identification and those resulting from a court order which do not. (1977) 3 Fam LR 11,211; FLC ¶90-217.

73. 74.

Ibid at 11,215; 76,131. Carvill & Carvill (1984) 9 Fam LR 1055; FLC ¶91-586.

75. 76.

Williams & Williams (1984) 9 Fam LR 789; FLC ¶91-541. O’Brien & O’Brien (1982) 8 Fam LR 691; (1983) FLC ¶91-316.

77. 78.

Reed & Reed (1989) 13 Fam LR 566; (1990) FLC ¶92-105. Rickaby & Rickaby (1995) 19 Fam LR 814; FLC ¶92-642.

79.

Best & Best (1993) 16 Fam LR 937; FLC ¶92-418; B & B (No 2) (2000) 26 Fam LR 437; FLC ¶93-031. De Angelis & De Angelis (1999) 30 Fam LR 305; (2003) FLC ¶93-133, where the testator was 90 years old and his wife was the sole beneficiary. See also White & Tulloch v White (1995) 19 Fam LR 696; FLC ¶92-640, where the testator was 80 years old and in good health. In that case, the court rejected the idea that a prospective inheritance could be taken into account as property or a financial resource.

80.

81.

Pope & Pope [2012] FamCA 204

82.

See, for example, Saba & Saba (1984) 9 Fam LR 780; FLC ¶91-579; Palmer & Palmer (1985) 10 Fam LR 406; FLC ¶91-606; Pleym & Pleym (1986) 11 Fam LR 451; FLC ¶91762; Zorbas & Zorbas (1990) 14 Fam LR 226; FLC ¶92-160; Goodwin & Goodwin (1990) 14 Fam LR 801; (1991) FLC ¶92-192. Likewise, in Kavan & Mallery [2013] FCCA 210, where no provision was made for the husband in his father’s will, the right to sue under the Succession Act 2006 (NSW) was held to be a chose in action which was personal and unassignable because of its inherently personal nature; it was not property. Public Trustee (SA) & Keays; Trustee of Broken Hill Mine Employees’ Pension Fund (1985) 10 Fam LR 610; FLC ¶91-651.

83. 84. 85.

Harrison & Harrison (1996) 20 Fam LR 322; FLC ¶92-682. Marlowe-Dawson & Dawson (No 2) [2014] FamCA 599. In that case, Kent J found that earning capacity or the right to exercise earning capacity does not amount to property. His Honour found that the husband’s earning capacity was dependent on a number of contingencies.

86.

87.

(2014) FLC ¶93-586; [2014] FamCAFC 60. The Full Court also found that contrary to Stanford, the trial judge had failed to identify the existing legal or equitable interest of Ms G in this property. Anthony Dickey, Family Law, 6th ed, Thompson Reuters, Pyrmont, 2014, p 391.

88. 89.

Marriage of Duff (1977) 3 Fam LR 11,211; FLC ¶90-217. (1979) 5 Fam LR 47; FLC ¶90-615

90. 91.

(1981) 7 Fam LR 762; FLC ¶90-615. Public Trustee (SA) & Keays; Trustee of Broken Hill Mine Employees’ Pension Fund (1985) 10 Fam LR 610; FLC ¶91-651.

92. 93.

(1981) 148 CLR 337; (1981) 6 Fam LR 591; FLC ¶91-000. (1981) 6 Fam LR 591 at 602; FLC ¶91-000 at 76,061–2.

94. 95.

(1986) FLC ¶91-777; 11 Fam LR 457. (1990) 14 Fam LR 817; FLC ¶92-197.

96.

(2004) 31 Fam LR 608; FLC ¶93-184. For other examples, see Stein & Stein (1986) 11 Fam LR 353; FLC ¶91-779; Shaw & Shaw (1989) FLC ¶92-030; Goodwin & Goodwin (1990) 14 Fam LR 801; (1991) FLC ¶92-192; Marriage of Harris (1991) 15 Fam LR 26; FLC ¶92-254. (2008) 238 CLR 366; 251 ALR 257; 40 Fam LR 1; FLC ¶93-388. For further discussion, see Ogden & Ogden (2010) 245 FLR 1; [2010] FMCAfam 865.

97. 98. 99.

Anthony Dickey, Family Law, 6th ed, Thomson Reuters, Pyrmont, 2014, p 545. Kennon v Spry (2008) 238 CLR 366; 251 ALR 257; 40 Fam LR 1; FLC ¶93-388 at [137] per Gummow and Hayne JJ.

100. See, for example, Patrick Parkinson, ‘Family Trusts and Third Parties Under the Family Law Act 1975’ (2012) 26 Australian Journal of Family Law 5; Lee Aitken, ‘Muddying the Waters Further — Kennon & Spry: “Ownership”, “Control” and the “Discretionary Trust”’ (2009) 32 Australian Bar Review 173; Tim North, ‘Spry v Kennon: The Last Word’ (2010) 21 Australian Family Law 15; Peter Hannon, ‘Kennon

v Spry: An Extended Reach for s 79’ (2010) 1 Family Law Review 18; Paul Brereton, ‘The High Court and Family Law: Two Recent Excursions’ (2013) 3 Family Law Review 63. 101. The Hon Diana Bryant AO, ‘Heterodox is the New Orthodox — Discretionary Trusts and Family Law: A General Law Comparison’ (2014) 20 Trusts and Trustees 654 at 670. 102. (1994) 18 Fam LR 505; (1995) FLC ¶92-569. 103. Ibid at 509–10; 81,654–6 per Nicholson CJ; Fogarty and Jordan JJ agreeing. 104. (1994) 18 Fam LR 505 at 510. 105. Marker v Marker [1998] FamCA 42; Omacini & Omacini (2005) 33 Fam LR 134; FLC ¶93-218. 106. Cerini v Cerini [1998] FamCA 143. 107. Marriage of Farnell (1996) 20 Fam LR 513 at 521–2, 525; FLC ¶92-681 at 83,068–70 per Fogarty J; 83,080 per Kay J. 108. (1998) 23 Fam LR 396; (1998) FLC ¶92-816. 109. Ibid at 411–12; 85-262–3 per Baker, Kay and Morgan JJ. 110. (2004) 32 Fam LR 518; (2004) FLC ¶93-204. 111. Ibid at 530; 79,320–1. 112. Ibid at 533; 79,322–3. 113. Ibid. 114. Ibid. 115. (2005) 33 Fam LR 134; FLC ¶93-218. 116. (1998) 23 Fam LR 396; (1998) FLC ¶92-816. 117. (1994) 18 Fam LR 505; (1995) FLC ¶92-569. 118. (1981) ¶FLC 91-092. 119. (2005) 33 Fam LR 134 at 144–5; FLC ¶93-218 at 79,617–8. 120. [2009] FamCA 1080 at [108]. 121. [2011] FamCA 271. 122. [2011] FamCA 548. 123. Ibid at [53]. 124. (2011) 46 Fam LR 197; FLC ¶93-479. 125. (2012) 48 Fam LR 458; FLC ¶93-519. 126. (2012) FLC ¶93-519 at [40]. 127. Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518. 128. (2012) FLC ¶93-518 at [37]. 129. (2012) 49 Fam LR 303; FLC ¶93-527 at [33]. 130. Bevan & Bevan (No 1) (2013) 49 FLR 387; FLC ¶93-545; [2013] FamCAFC 116. 131. (2013) FLC ¶93-545 at [79]. 132. See, for example, Truman & Truman [2013] FamCA 765; Churchill & Churchill [2015] FamCA 491.

133. [2015] FamCAFC 115. 134. See also Talbot & Talbot [2015] FamCAFC 132; Vass & Vass [2015] FamCAFC 51. In the latter case, the Full Court stated at [138] that ‘there is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties’. 135. Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518 at [37]. 136. Warne & Warne (1982) 8 Fam LR 388 at 389; FLC ¶91-247 at 77,369. In relation to the methods of valuation, see Borriello & Borriello (1989) 13 Fam LR 415; FLC ¶92049; Brennan & Brennan (1991) 14 Fam LR 725; FLC ¶92-229; Smith & Smith (1991) 15 Fam LR 206; FLC ¶92-261. 137. (2005) 33 Fam LR 134; FLC ¶93-218. 138. Ibid at 142; 79,614–5 (although on the facts, the Full Court held that the trial judge fell into error by accepting a valuation that was less than the valuations both at the date of separation and the date of the hearing). 139. (2002) 29 Fam LR 128; FLC ¶93-104. 140. (2002) FLC ¶93-104 at 88,983. 141. Family Law Rules 2004 (Cth) rr 12.02 and 12.05. 142. Ibid r 15.44. 143. Ibid r 15.45. 144. Ibid r 15.48. 145. Ibid rr 15.51 and 15.52. 146. Biltoft & Biltoft (1995) 19 Fam LR 82; FLC ¶92-614. 147. Campbell v Kuskey (1998) 22 Fam LR 674; FLC ¶92-795. 148. Petersons & Petersons (1981) 7 Fam LR 402; FLC ¶91-095; Reynolds & Reynolds (1984) 10 Fam LR 388; (1985) FLC ¶91-362; Commissioner of Taxation v Worsnop (2009) 40 Fam LR 552; FLC ¶93-392. See, more recently, Winston & Winston (No 2) [2013] FamCAFC 147. 149. Rosati v Rosati (1998) 23 Fam LR 288; FLC ¶92-804. 150. Adair & Milford [2015] FamCAFC 29. 151. Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518. 152. Bevan & Bevan (No 1) (2013) 49 Fam LR 387; FLC ¶93-545. 153. (2013) FLC ¶93-545 at [60]. See also Layton & Layton [2014] FamCAFC 126, where the Full Court (Finn, Strickland and Ainslie-Wallace JJ) left open the possibility that unsecured liabilities may be dealt with on a contractual basis, for example. 154. Kowaliw & Kowaliw (1981) ¶FLC 91-092 at 76,645. 155. (1992) 16 Fam LR 154; (1993) FLC ¶92-388. See also Black & Kellner (1992) 15 Fam LR 343; FLC ¶92-287; Hagan & Gerald [2013] FamCA 714; Devopoulos & Devopolous [2014] FamCA 224. 156. Chang v Su (2002) 170 FLR 244; FLC ¶93-117.

The High Court refused leave to appeal from this decision: see Chang v Su (2002) 157. 23(19) Leg Rep SL4. 158. Tate & Tate (2000) 26 Fam LR 731; FLC ¶93-047. 159. Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC ¶93-518. 160. The Hon Justice Paul Brereton, ‘The High Court and Family Law: Two Recent Excursions’ (2013) 3 Family Law Review 63; Patrick Parkinson, ‘Family Property Law and the Three Fundamental Propositions in Stanford v Stanford’ (2013) 3 Family Law Review 80; Michael Kearney SC, ‘Palm Tree Justice in a Post Bevan World’, Paper presented at the Family Law Intensive, Melbourne, 2014; Anna Parker, ‘Stepping In: The Full Court Speaks Out on Stanford’ (2013) 51 Law Society Journal 2; Ian Coleman, ‘No Presumptions, No Assumptions: “Just and Equitable” Principles in Family Property Disputes’ (2015) 2 Law Society Journal 84. 161. Bevan & Bevan (No 1) (2013) 49 FLR 387; FLC ¶93-545 at [81]. 162. See, for example, Thorley v Greer [2015] FamCA 213, where parties had kept their financial arrangements separate throughout the de facto relationship. Austin J held that it was not just and equitable to make any order altering property interests. See also Kaule & Brown [2015] FamCA 480. 163. Bevan & Bevan (No 1) (2013) 49 FLR 387; FLC ¶93-545. 164. (2013) FLC ¶93-545 at [166]–[167]. 165. See Hickey & Hickey (2003) 30 Fam LR 355; FLC ¶93-143. 166. (2014) FLC ¶93-592; [2014] FamCAFC 91. 167. [2014] FamCAFC 91 at [40] per Murphy and Strickland JJ; Bryant CJ agreeing on this point. 168. Ibid at [19] per Murphy and Strickland JJ; Bryant CJ agreeing on this point. 169. Stanford v Stanford (2012) 247 CLR 108; 291 ALR 70; 47 Fam LR 481; FLC ¶93-518 [35]. 170. Bevan & Bevan (No 1) (2013) 49 FLR 387; FLC ¶93-545 at [86]. 171. (2013) FLC ¶93-545 at [81]. 172. Ibid at [82]. 173. Chapman & Chapman (2014) FLC ¶93-592; [2014] FamCAFC 91. 174. [2014] FamCAFC 91 at [22]. 175. [2015] FamCAFC 178 [65]. 176. Ibid at [65]. 177. Ibid at [71]. 178. Bevan & Bevan (No 1) (2013) 49 FLR 387; FLC ¶93-545. 179. (2013) FLC ¶93-545 at [84]. 180. Ibid at [85]. 181. Chapman & Chapman (2014) FLC ¶93-592; [2014] FamCAFC 91. 182. [2014] FamCAFC 91 at [26]–[27]. 183. Ibid at [4]–[5], [9]. 184. Ibid at [5], [9].

185. [2014] FamCAFC 203. 186. (2014) FLC ¶93-617; [2014] FCWA 77. 187. [2014] FCWA 77 at [33]. His Honour maintained the view that s 79(4) mandates taking into account relevant matters under s 79(4), but recognised that following Chapman this was not possible. 188. See Robyn Carroll, ‘Family Law, Involuntary Separated Couples and their Property’ in ‘Ageing and the Law’ (2015) 33 Law in Context 87 for examples of the sort of matters that the court will take into account when determining whether it is just and equitable to make an order altering interests in property. 189. [2014] FCWA 61 (15 September 2015). 190. More recently, while maintaining his criticism, Walters J has acknowledged that he is bound by previous Full Court decisions in Chapman and Scott & Danton: see, for example, Fullgrabe & Fullgrabe [2015] FCWA 9 (21 January 2015); Engelbrecht & Moss [2015] FCWA 19 (24 February 2015). 191. This ‘property pathway’ is adapted from the judgment of Walters J in Engelbrecht & Moss [2015] FCWA 19 (24 February 2015) at [137]. 192. See, for example, Bevan & Bevan (No 1) 49 FLR 387; FLC ¶93-545; Fielding & Nichol (2014) FLC ¶93-617; [2014] FCWA 77; Eurfrosin & Eurfrosin [2014] FamCAFC 191; Thorley v Greer [2015] FamCA 213; Kaule & Brown [2015] FamCA 480.

[page 850]

14 PROPERTY PROCEEDINGS: THE EXERCISE OF THE DISCRETION ___________________________

Introduction 14.1 Chapter 13 considered the process that the court embarks upon to determine whether it is just and equitable to make any order altering the existing interests of the parties in property following marriage, or relationship breakdown. This chapter considers the process the Family Court undertakes when determining the extent of that order. As already described in Chapter 13, s 79(4)/90SM(4) of the Family Law Act 1975 (Cth) (FLA) contains a number of factors that the court shall consider when making orders dividing property between the parties. While the court is given a broad discretion to ‘make such order as it considers appropriate’, s 79/90SM sets out the principles that guide the exercise of this discretion. Section 79 is a statutory adjustive mechanism designed to remedy injustices and ensure that any order made is just and equitable. However, the section is not without its critics, particularly regarding the width of discretion it confers, the absence of clear statements of principle within it and its consequent unpredictability.

The exercise of the discretion 14.2 The High Court recognised early in the life of the FLA that consistency in decision-making was a desirable goal. Consequently, as confirmed in a line of decisions dating back to the 1986 High Court case of Norbis v Norbis,1 it is open to appellate family courts to lay down ‘legitimate guidelines’ as to the exercise of discretion, which should be followed unless the justice of the case requires otherwise. Indeed, in Norbis Mason and Deane JJ went so far as to say: To avoid the risk of inconsistency and arbitrariness, which is inherent in a system of relief involving a complex of discretionary assessments and judgments, the

[page 851] Full Court, as a specialist appellate court with unique experience in the field of family law in this country, should give guidance as to the manner in which these assessments and judgments are to be made. (emphasis added)2

14.3 In Norbis the principle under consideration was whether a court should assess the parties’ contributions to assets globally, or by looking at each asset separately (see 14.16, where this principle and the ultimate decision in Norbis are discussed). Mason and Deane JJ began by discussing the general law in relation to appeals against the exercise of discretion. Their Honours concluded that in addition to being able to formulate guidelines, appellate courts could lay down binding rules of law that must be followed in the exercise of discretion. Their Honours explained that, in the following classic statement from House v The King3 as to when appellate interference with a judicial exercise of discretion is appropriate, the phrase ‘wrong principle’ referred to binding rules: ‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle … then his determination should be reviewed’.4 Thus, according to Mason and Deane JJ, failure to apply a binding rule means the exercise of

discretion will miscarry. However, this is not the case, their Honours held, in respect of legitimate guidelines: A failure to apply a guideline does not of itself amount to error, for it may appear that the case is one in which it is inappropriate to invoke the guideline or that, notwithstanding the failure to apply it, the decision is the product of a sound discretionary judgment. The failure to apply a legitimate guideline to a situation to which it is applicable may, however, throw a question mark over the trial judge’s decision and ease the appellant’s burden of showing that it is wrong. However, in the ultimate analysis and in the absence of any identifiable error of fact or positive law, the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes.5

Importantly, their Honours went on to say that the goal of giving guidance to aid consistency through the development of rules and guidelines should preserve: … so far as it is possible to do so, the capacity of the Family Court to do justice according to the needs of the individual case, whatever its complications may be. Reconciliation of these goals suggests that in most, if not all, cases the Full Court of the Family Court should give guidance in the form of guidelines rather than binding principles of law. The nature of the issues which arise under s 79 is such that there is either little or no scope for giving guidance in the form of binding rules of law.6

[page 852] 14.4 Their Honours were recognising that, while guidelines might be more routinely developed, binding rules would be rare. Wilson and Dawson JJ did not share the views of Mason and Deane JJ on the question of binding rules and legitimate guidelines, rejecting the notion that the court has the power to formulate ‘principles or guidelines designed to constrain judicial discretion’.7 Brennan J, however, was generally in agreement, save that his Honour was of the view that no principle could be given the force of a binding rule.8 This divergence of opinion on the question of binding rules of law has not been reconsidered by the High Court in the family law context, though the Full Court did refer to it in the recent case of

Hoffman & Hoffman.9 It would seem from the discussion of the question of guidelines and rules by the High Court in Wong v The Queen10 (a 2001 case not cited in Hoffman that looked at the issue in the context of sentencing guidelines) that the view of Brennan J is to be preferred and that the court may not create binding rules of law that must be applied in the exercise of discretion. It is not surprising, therefore, that there are no examples of binding rules governing the exercise of discretion in the case law concerning s 79. However, as we have discussed elsewhere (see 8.106), it is arguable that the so-called rule in Rice & Asplund11 (which prohibits the relitigation of parenting disputes in the absence of a significant change of circumstances) has been treated as a binding rule of law. Leaving aside the difficult question of binding rules of law, there have been Full Court decisions since Norbis12 which have confirmed that legitimate guidelines may be formulated. However the Full Family Court has been surprisingly silent in explaining whether the various principles referred to in the case law fit into this category. We have discussed this issue in relation to parenting matters (see 8.106), however it is more salient in the case of the operation of s 79. This is because it is self-evidently the case that courts will feel it is more appropriate to formulate legitimate guidelines when the question at hand is how money should be divided, than they will to limit the exercise of discretion in relation to the parenting of a child. Thus, while the notion of discretion being limited by legitimate guidelines is applicable in both parenting and property disputes, most of the relevant case law has developed in relation to the exercise of discretion under s 79. [page 853] 14.5 This was highlighted in Hoffman, where the Full Court commented:

Contentions have been made periodically that ‘legitimate guidelines’ exist in respect of a number of purported ‘categories of case’. Examples might be seen to include global/asset-by-asset approach; initial contributions; gifts and inheritances; waste; and conduct making contributions significantly more arduous. (emphasis added)

Consideration of the decisions to which reference has just been made reveals that some statements within those cases may be described as ‘legitimate guidelines’ in the sense just discussed while many others may not.13 Hoffman considered whether there was any rule or legitimate guideline to be derived from previous Full Court cases involving so-called ‘special contributions’ (see further, 14.24–14.32). In rejecting the notion that there was any rule or legitimate guideline in such cases, their Honours outlined a test of sorts as to whether the case law in question gives rise to a legitimate guideline: … the task is to assess, relevantly, whether the authorities reveal a principle enunciated with clarity and clear indicia as to a class or category of case in which the clear principle can be applied universally so as to guide the exercise of the discretion in the sense earlier outlined.14

As indicated above, even where such a legitimate guideline exists, the court has a discretion whether to apply it; as the Full Court said in Lovine & Connor,15 ‘the exercise is one of discretion within a discretion’. The discretion to apply a legitimate guideline will miscarry only if the failure to do so causes the overall exercise of discretion to miscarry. Accordingly, the failure to apply a legitimate guideline invites close scrutiny of the ultimate exercise of discretion. Where a legitimate guideline is not applied, an appellant will need to show that this departure was not justified by the facts and circumstances of the case, and also show that this resulted in the overall discretion miscarrying. 14.6 We go on to consider in this chapter how the courts have dealt with various factual matters that commonly arise in property disputes. If the court has not enunciated a legitimate guideline, in the terms delineated in Hoffman, then any discussion as to how courts exercise discretion serves only as an example of the ways in

which courts may approach a matter; each case will ultimately still turn on its own facts. [page 854]

The alteration of property interests 14.7 Paragraphs 79(4)(a)–(c) of the FLA direct the court to examine the history of the marriage (which includes any period of cohabitation prior to marriage). In doing so, the court must evaluate the parties’ respective contributions, both financial and non-financial, to any property and to the general welfare of the family.16 The equivalent provision for de facto relationships is s 90SM(4)(a)–(c). Section 79(4)(a)–(b)/90SM(4)(a)–(b) refers to contributions made ‘by or on behalf of’ a party, so that contributions by third parties to property may be taken into account. Similarly, the contributions of a child may be taken into account.17 Once the court has assessed the contributions of the parties it must then examine the so-called prospective factors contained in s 79(4)(d)–(g)/90SM(4)(d)–(g). At this juncture the court will make an assessment as to the parties’ contributions and ‘there will inevitably be a “leap” from words to figures … In some cases, the “leap” is so great, and so unheralded by the discussion which precedes it as to render the reasoning process defective.’18 Thus at this point, the court will usually make a finding in percentage terms (sometimes in dollar terms as well) as to the proportion of the asset pool to which each party is entitled based on the myriad contributions to the relationship,19 following which the court may make a further adjustment taking into account the prospective factors. The weight accorded to the various contributions and the relevant prospective factors are all part of the exercise of the court’s discretion.

Notwithstanding that the outcome of property proceedings cannot be calculated with mathematical precision, the judge must provide reasons (not necessarily elaborate reasons) for the conclusions reached which will sufficiently explain the outcome.20 Moreover, failure to take account of relevant contributions and arithmetical errors in assessing the value of assets can vitiate the exercise of a trial judge’s discretion.21 [page 855] 14.8 In Petruski v Balewa,22 the Full Court described the task of assessing contributions under the FLA as ‘an holistic one; what is required is to evaluate the extent of the contributions of all types made by each of the parties in the context of their particular relationship.’23 Moreover, the Full Court has cautioned against allocating differing percentage figures to contributions made to various components of the relationship or at different stages of the relationship.24 In Lovine & Connor,25 the Full Court summed up its disapproval of assessing each component separately as follows: As part of the process of ultimately determining just and equitable orders under s 79 there is included a complex of discretionary assessments and judgments of many components of contribution, only some of which are capable of measurement in money terms and then often only in historical, rather than present, money terms. Any dictate to the effect that in the course of assessment each disparate component part or kind of contribution must be assigned a discrete and identifiable value or percentage is antithetical to the nature of the discretion involved.26

In the decision of Kane & Kane,27 Faulks DCJ confirmed that while assessing the contributions of the parties in percentage terms is a ‘sensible and practical tool’, it is unnecessary for a trial judge to do so as the legislation does not mandate that the court divide property in accordance with a predetermined percentage.

Identification of contributions

14.9 The wording of s 79(4)(a)–(b)/90SM(4)(a)–(b) (which refers to contributions made ‘to the acquisition, conversion or improvement’ of property) as against s 79(4)(c)/90SM(4)(c) (which refers to contributions made ‘to the welfare of the family’) raises the question whether it is necessary to show a nexus between financial and non-financial contributions and a particular item/s of property. It also begs the question whether an entitlement based on a contribution to the welfare of the family can only be satisfied out of property available at the time that the contribution was made. This issue arose in the 2000 case of Farmer v Bramley,28 where a husband won $5 million in a lottery some 18 months [page 856] after the parties separated (but before the parties were divorced). The lottery winnings effectively represented the available matrimonial property. The trial judge (Purdy J) awarded the wife $750,000. The Full Court agreed that the trial judge had provided little reasoning for his decision; nevertheless a majority of the Full Court (Finn and Kay JJ; Guest J dissenting) dismissed the husband’s appeal. In particular the husband’s argument that an entitlement based on a homemaker/parenting contribution can only be satisfied out of property available to the parties at the time the contribution was made was rejected. Finn J limited her discussion to the following argument of husband: … an issue has arisen in this appeal as to whether an entitlement based on contributions made to the welfare of the family can only be satisfied out of property available to the parties at the time the contribution was made. In my view, there is nothing in s 79(4)(c) or indeed elsewhere in the Act, or in the authorities to date, which would justify such a limitation. … [I]f it was to be determined that a majority of the community considered that one spouse should, as a general rule, have no entitlement to share in property either by good fortune or good management acquired after separation by the other spouse, then the Act would need to be amended to make this clear. As the Act currently stands, the jurisdiction conferred by s 79(1) to alter the interests of spouses in property extends

without limitation to all the property which either spouse is entitled ‘whether in possession or reversion’: s 4.29

Similarly, Kay J stated: … an assessment of contributions made under s 79(4)(a), (b) and (c) does not have to bear a direct relationship to the assets as they presently exist. The court is asked to determine what is an appropriate and just and equitable order, bearing in mind not only the contributions made directly to the existing assets, but contributions made generally during the course of the relationship between the parties both to the acquisition, conservation and improvement of assets (which may or may not still exist) and to the welfare of the family in the role of homemaker and parent. … However it is quite wrong to say that contributions made under s 79(4)(a), (b) or (c) before an existing asset was acquired could have no bearing on the outcome of the proceedings.30

In his dissenting judgment, Guest J held: The occurrence (or time) of the contribution to the welfare of the family and the actuality of property under consideration must either partially or substantially coexist. … For to say otherwise would invest the post-separation acquired property with a retrospective identity. Although there need not be a specific

[page 857] nexus between the property and the contribution, they both must occupy the same time and space, that is, have parallel or fractional contemporaneity.31

14.10 Not surprisingly, the dissenting view of Guest J has been the subject of discussion and comment.32 In the 2010 case of Polonius v York,33 the Full Court, while noting that the issues raised in Farmer had not been argued extensively, acknowledged the debate as to whether the provisions of Pt VIII of the Act should be read literally or whether there should be an underlying requirement that the grounds of relief have a clear connection with the parties’ marriage.34 The majority pointed out that if Guest J’s approach was adopted, it could result in an asset-by-asset approach or a ‘category of assets’ approach (ie separate characterisation of those acquired post-separation) being taken when considering matters under s 75(2), particularly s 75(2)(b) (see

14.58–14.61 for discussion of s 75(2)). The Full Court went on to say: ‘We do not agree with this approach.’35 More recently, in Marsh & Marsh36 Ainslie-Wallace J rejected the necessity for contributions to be tied to a particular asset.37 Thus it would seem that the court has not endorsed an approach that requires a party to establish that contributions were made to existing or past property. Rather, the court looks at all kinds of contributions made by the parties from the time of cohabitation to the date of trial,38 and all property as at the date of trial will be available to meet the order the court thinks appropriate. As we shall see, this certainly does not mean that courts will routinely alter the parties’ interests in property acquired after they separate. It may well be that an assessment of the parties’ contributions, future needs and the justice of the case make that inappropriate. However, if it is necessary to do so in order to achieve an appropriate and just outcome, then it is open to the court to make such an order. The facts of Farmer v Bramley39 presented just such a situation. The wife in this case had supported the husband financially and emotionally during a period of years when he suffered from drug-related problems and had the bulk of the care of their child after separation. Their financial situation was extremely modest. In these circumstances, the court found it was appropriate [page 858] that the wife be awarded a sum from the husband’s postseparation lottery win to recognise her very significant contributions.

Financial contributions 14.11 Section 79(4)(a)/90SM(4)(a) of the FLA requires consideration of financial contributions made directly or indirectly

by or on behalf of a party to the acquisition, conservation or improvement of any of the property of the parties or either of them, or otherwise in relation to the property of the parties. The wording of the section makes it clear that it is irrelevant that the property no longer belongs to the parties. This paragraph is confined to financial contributions in relation to property, but is wide enough to permit a range of contributions to be taken into account. Direct financial contribution to acquisition of property is usually self-evident and rarely contentious. An illustration of financial contribution by one spouse to the improvement of property already owned by the other is found in the early Family Court case of Marriage of McDougall.40 There, the husband had owned a house before marriage and the purchase of the matrimonial home was financed with the proceeds of sale of his first home. However, the wife expended money on repairs and renovations of the second home, and the court confirmed her joint interest in it.41 Financial contributions are usually treated as the predominant consideration in short (and, in particular, childless) marriages.42 Superannuation contributions are obviously relevant to the assessment of contributions under s 79(4)(a)/90SM(4)(a). Prior to the commencement of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth),43 in late 2002, superannuation was not considered as ‘property’ (until it was received), but rather as a ‘financial resource’ of the superannuated party (and thus relevant to s 79(4)(e)).44 There are now specific rules and orders that apply in respect of superannuation entitlements and these are considered at 15.2–15.12.

Non-financial contributions 14.12 Section 79(4)(b)/90SM(4)(b) of the FLA permits the consideration of non-financial contributions to property, for instance, unpaid labour. This provision has a wide application. For example, in the 1976 case of Marriage of Zappacosta,45

[page 859] the court took account of the wife’s manual labour in establishing an orchard. Contributions by one party to the other’s financial success in business have also been taken into account. In the 1992 decision of Marriage of Whiteley,46 Mrs Whiteley made nonfinancial contributions in several ways, including by way of artistic inspiration of her successful painter husband, and her role as his critic. There can at times be an overlap between contributions that may be taken into account as non-financial contributions and contributions to the family under s 79(4)(c)/90SM(4)(c): contributions in the capacity of homemaker and parent may be taken into account under s 79(4)(b)/90SM(4)(b) where they promote the success of a business.47 In the 1995 case of Marriage of Zubcic,48 the wife’s nursing of the husband following an accident was taken into account as a contribution to his property since it enabled him to conserve a damages award.

Contributions to the welfare of the family 14.13 Section 79(4)(c)/90SM(4)(c) was introduced into the FLA via the Family Law Amendment Act 1983 (Cth). It requires the court to evaluate: … the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage — and any children of the marriage, including any contribution made in the capacity of homemaker or parent.

Contributions to the welfare of the family may take various forms. For example, in Linder & Linder,49 Rees J took into account not only the fact that the wife extensively cared for the parties’ daughter during her period of illness, but also that she donated one of her kidneys to the daughter. In the 1978 case of Wardman & Hudson,50 the Full Court of the

Family Court (Watson, Wood and Fogarty JJ) said: … clearly in our view in considering what order is just and equitable under s 79 it would be wholly inappropriate not to give full and significant regard to the ordinary situation in the community, namely a situation where the wife directs herself, particularly during the period when the children are young, away from outside employment towards the conduct of the home and the rearing of the children and that in ordinary circumstances that is a contribution which in every way ought to be equally equated to the efforts

[page 860] of the husband who is thus freed to pursue his direct outside employment. In 1965 Sir Jocelyn Simon used a telling metaphor: The cock can feather the nest because he does not have to spend most of his time sitting on it.51

Contributions to the welfare of the family are limited to the immediate family and do not include extended family, although such contributions may be taken into account under s 75(2) (o)/90SF(3)(r). Unlike s 79(4)(a)–(b)/90SM(4)(a)–(b), where contributions may be made ‘by and on behalf of a party’, contributions to the welfare of the family must be made by one of the parties to the marriage/relationship.52 However there seems to be no reason why such contributions cannot be taken into account under s 79(4) (b)/90SM(4)(b).53 The FLA is gender-neutral in its terminology. Consequently, recognition is not limited to the wife’s contribution as homemaker/parent, and the contributions made by a husband to the welfare of the family will be considered and evaluated.54 However, reported instances of husbands’ claims based predominantly on a non-financial role remain very much the statistical minority. Interestingly, the term ‘homemaker’ is not defined in the Act. Dickey has offered the following description: Put simply, the notion of a homemaker concerns a person who turns a mere place

to live into what members of a household would regard as undoubtedly a home.55

In Marriage of Molen56 (a 1993 case involving a wife’s contributions to her husband’s six children as well as her own), Cohen J considered in obiter that s 79 should be interpreted as referring to any child who has been treated generally by the parties as theirs. Nevertheless, it was unnecessary to decide the point since a party’s contributions to the care and upbringing of any child can be considered under s 75(2)(o)/90SF(3)(r) (incorporated by s 79(4)(e)/90SM(4)(e)).57 14.14 The demise of ‘special contributions’ (discussed below at 14.28–14.32) provided the Family Court with the opportunity of promoting the importance of the [page 861] contributions to the welfare of the family. The Full Court in Fields & Smith58 confirmed that the FLA does not indicate a preference for any form of contribution and that all contributions must be evaluated in the context of the facts of the particular case. Moreover the Full Court accepted that there is no need to distinguish between the parties’ contributions. In this case, both parties had made equal contributions within their particular spheres: the wife predominantly to the welfare of the family and the husband predominantly via financial contributions through a very successful and valuable family business. These findings translated into the outcome that the asset pool of over $30 million be divided equally between the parties. The Full Court went on to note that, unlike non-financial contributions pursuant to s 79(4)(b)/90SM(4)(b) which a require a nexus between the contributions and the property, no such nexus is required for contributions under s 79(4)(c)/90SM(4)(c). The court recognised that contributions to the welfare of the family may change during the course of a long relationship. The fact that

a party may no longer be required to look after children does not necessarily indicate that her (or his) role has diminished, but it may take another form, for example, caring for grandchildren. The Full Court observed as follows: It is also to be noted that s 79(4)(c) requires the court to consider ‘the contribution made by a party to the marriage to the welfare of the family … including any contribution made in the capacity of homemaker or parent’. Thus, in our view, the wording of the section itself contemplates a contribution to the welfare of the family as being something more than a contribution in the capacity of homemaker and/or parent. (emphasis added)59

It is one thing to recognise non-financial contributions and contributions to the welfare of the family as against financial contributions to a marriage or a de facto relationship, but this does not resolve the issue of the relative values to be accorded to each. Fields & Smith has gone some way to resolving this issue through categorically recognising the homemaker/parent contributions as substantially equal to financial contributions, even in cases where the efforts of the ‘breadwinner’ spouse have resulted in the parties having very significant assets. 14.15 The recognition of the importance of the homemaker contribution as compared with financial contributions reached the high-water mark in the recent decision of Trask & Westlake.60 The wife was the primary homemaker and carer of four children, enabling the husband to escalate up the corporate ladder and earn a huge income. The trial judge, Aldridge J, recognised that while the husband had received tangible recognition of his ‘experience, knowledge and opportunities [page 862] … the contributions of the wife are much less tangible. The lack of tangible recognition, or the fact that they are not susceptible to a dollar calculation does not render them less important’.61 The Full Court (Thackray, Ryan and Murphy JJ) upheld Aldridge J’s

decision awarding the wife 50 per cent of the over $7 million asset pool based on contributions, with a further 10 per cent adjustment in the wife’s favour based on s 75(2)(e) factors.62 Thus the Full Court has at long last turned rhetoric into reality and has in practical terms endorsed a partnership approach which recognises that contributions to the welfare of the family are no less valuable than financial contributions.

Assessing contributions Global or asset-by-asset approach? 14.16 It is within the court’s discretion to assess the parties’ overall contributions to the totality of their past and present assets (the ‘global’ approach) or to evaluate particular contributions to particular assets (the ‘asset-by-asset’ approach).63 The global approach is more convenient in the majority of cases.64 As Mason and Deane JJ observed in Norbis v Norbis,65 ‘[t]here is much to be said for the view that in most cases the global approach is the more appropriate’. However, the High Court made clear in Norbis that in some circumstances it may be more appropriate for the court to adopt an asset-by-asset approach; that is, for the court to assess the parties’ contributions to each particular asset (or certain assets) individually.66 For example, in cases where financial contributions predominate, and/or the marriage or de facto relationship was short, or the parties dealt with their respective assets separately, or when there has been a considerable lapse of time between separation and the hearing, it may be more appropriate to use the asset-by-asset approach.67 The High Court in Norbis did not expressly recommend one approach over the other and also indicated that it may be possible to adopt a combined approach, whereby a global approach is taken to some assets and an asset-by-asset approach to others.68 Here, as in other aspects of property division, the court’s discretion is wide.

[page 863] 14.17 In Greer & Mackintosh,69 Dawe J at trial had adopted a global approach, despite the urgings of counsel for the husband that her Honour should adopt an asset-by-asset approach on the basis that the marriage was of short duration and the real property which the wife retained at separation was of considerably greater value than at the date of cohabitation. On appeal, the Full Court (Finn, Thackray and Strickland JJ) held that Dawe J had recognised the available options and had elected to follow a global approach. Moreover, her Honour was not obliged to provide detailed reasons for adopting such an approach.70 It is possible that following Stanford v Stanford71 (see 13.34) — which emphasised that the court must have a principled reason for interfering with the status quo and that there is no assumption that orders altering property interests will be made — members of the judiciary may be more inclined to adopt an asset-by-asset rather than a global approach to property settlement. It would also seem that where superannuation interests are involved, an asset-by-asset approach is being advocated. In Coghlan & Coghlan,72 the Full Court classified superannuation as ‘another species of asset’: see 15.10. In this decision, the court indicated a preference for a ‘two pools’ approach, with contributions to superannuation being assessed separately from contributions to the balance of the assets.73

The rise of the partnership approach and the fall of ‘special contributions’ 14.18 Prior to the 1984 High Court decision of Mallet & Mallet,74 the Family Court developed a guideline that — at least in the context of a marriage of reasonably long duration and of assets

built up by joint efforts or used for joint purposes — the starting point should be an equal division of such assets, from which starting point the court could vary each party’s entitlement.75 This approach was not applied to marriages of very short duration, in which the value of actual contributions was given primary importance.76 Nor was it adopted in the division of business assets built up primarily by the wage-earner’s efforts; in such cases, a division of 20–30 per cent of overall assets to the homemaker was a fairly common outcome in reported decisions.77 [page 864]

Equality as a starting point rejected 14.19 However, in Mallet, the High Court (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ)78 rejected the ‘half-shares starting point’ approach, emphasised the wide nature of the discretion conferred by s 79, and stated that each case must be decided on its own facts with the court actually evaluating the contributions of each party.79 In Mallet, the High Court rejected a presumption of equality as a starting point when dividing property as fettering the wide discretion that the FLA provides.80 However Mason and Dawson JJ conceded that, particularly in the case of a long marriage, the court may be more likely to reach a conclusion of equality of contributions.81 In Mallet, the High Court approved the view of the Family Court expressed in Marriage of Rolfe82 and other decisions that contributions made in the capacity of homemaker and parent should be recognised ‘not in a token but in a substantial way’. Nevertheless, the principal thrust of the High Court’s decision was to emphasise the width of judicial discretion conferred by s 79 of the FLA. As the Australian Law Reform Commission put it: Whatever its effect in everyday practice, Mallet’s case gives a sharper focus to the debate on whether the law should be changed. It re-asserts the breadth of the trial

judge’s discretion … It entrenches the dominance of flexibility over predictability in the present law.83

14.20 What has been the pattern of decisions from the Family Court of Australia (and more recently from the Federal Magistrates Court and the Federal Circuit Court) in the years since Mallet was decided by the High Court? It is admittedly difficult to draw generalisations from the case law in a highly discretionary jurisdiction. Nevertheless, some trends are discernible. In the years immediately following the decision in Mallet, there was apparently a tendency to undervalue [page 865] the homemaker/parent contribution, particularly in ‘business empire’ cases, where a spouse who assumed a primarily domestic role commonly received far less than 50 per cent of the assets overall.84 At the time, this attracted particular criticism from academic commentators, as did the general unpredictability of outcomes under s 79.85

Greater value (in theory) placed on ‘women’s work’ 14.21 The 1990s evidenced a change of attitude by the judiciary to the evaluation of non-financial contributions to marriage. While reiterating the principle that the discretion conferred by s 79 is very wide (consistent with the decision of the High Court in Mallet),86 the courts acknowledged a past tendency to undervalue non-financial contributions. Against an evolving social background, greater emphasis was given to the equality and partnership concepts in a marriage and to the worth of the domestic role. This trend may be traced back to the early 1990s in cases such as Marriage of Dawes87 (the wife’s successful appeal from

an award of 30 per cent of the asset pool), Marriage of Harris88 (where the wife received 48 per cent) and Marriage of Ferraro89 (where on appeal the wife received 37.5 per cent): see 14.22. 14.22 In Ferraro, the Full Court, while accepting that Mallet represented ‘an emphatic rejection of the presumption of equality’,90 nevertheless indicated that the court does not need to undertake a detailed analysis of the parties’ performances of their respective roles in every case, and that within the ‘normal range’ of such roles, no detailed assessment is appropriate. Furthermore, the Full Court placed emphasis on marriage as a partnership, and expressly acknowledged the importance of the homemaker parent contribution and the difficulties in valuing such contributions as against financial contributions. Given the Full Court’s rhetoric of equality within marriage, the actual outcome in Ferraro was disappointing. [page 866] In Ferraro, during a 27-year marriage, the husband built up a large business in property development. The wife took on the responsibilities of homemaker and parent (to their three children) almost alone and supported the husband’s business activities. There were company and trust arrangements through which the business operated. The wife was a company director. At trial, the assets were valued at nearly $11 million, of which the judge awarded the wife 30 per cent. On appeal, the Full Court, despite its worthy rhetoric, increased the wife’s share of the assets by only 7.5 per cent (see 14.26 for further discussion of this case). At the time, Chisholm observed: The decision should provide a stimulus to re-examine the basic purpose of this area of law, and the question whether the legislation should provide more specific guidance, as recommended by the ALRC back in 1987 and by the Select Committee in 1992.91

14.23 It is certainly arguable that the principles enunciated in Ferraro, together with the recognition of the ‘feminisation of poverty’ that often accompanies relationship breakdown (see 12.5–12.7), have resulted in a more positive outcome for parties claiming a contribution primarily under s 79(4)(c)/90SM(4)(c) of the FLA. The trend of according increased recognition to nonfinancial contributions in the overall distribution of the parties’ assets may be discerned in a number of decisions that quickly followed Ferraro: these cases include Marriage of Best92 (where the wife received 100 per cent of limited net assets), Marriage of Kessey93 (where the wife received 55 per cent), Marriage of Georgeson94 (where the wife received 65 per cent by virtue of contributions), Marriage of Clauson95 (where the Full Court assessed contributions as equal), and Marriage of Gould,96 (where the Full Court assessed contributions as equal). It is suggested that the demise of ‘special contributions’ (see 14.28–14.32) will in the future result in still greater recognition being placed on contributions to the welfare of the family.

The rise and fall of ‘special’ contributions 14.24 Another issue that has arisen in the context of determining the respective contributions of the parties under s 79(4)(a)–(c)/90SM(4)(a)–(c) is whether a contribution can be considered so ‘special’ or ‘extra’ that it should attract greater weight than the other contributions made by the parties to the marriage or de facto [page 867] relationship. This has arisen both in the context of financial contributions — that is, s 79(4)(a)/90SM(4)(a), where the ‘special contribution’ has directly contributed to the substantial wealth of the parties97 — and in relation to the contribution of the

homemaker and/or parent to the family — that is, s 79(4) (c)/90SM(4)(c). However, there are no reported cases of which we are aware where the special contribution label has been expressly applied to non-financial contributions. Having said that, it might be argued that what are known as ‘Kennon contributions’ (where the family contribution made by a party who has suffered domestic violence at the hands of the other party is considered more onerous because of that violence and therefore should attract an additional weighting)98 are a species of special contribution; however, in developing that principle, the court has not referred to the concept. Moreover, there has been no suggestion that the recent rejection of the notion of special contributions in relation to ‘big money’ cases has any impact on the application of the Kennon principle.

The rise and rise of special contributions 14.25 The concept of special contributions germinated from the decision in Mallet,99 where members of the High Court, while rejecting equality as a starting point, flagged the possibility of the notion of special contributions.100 A series of cases followed which recognised that one party had made ‘extra’, ‘special’ or ‘stellar’ contributions (arising from a claimed ‘special skill’) that should accordingly be rewarded on property division.101 One of the first decisions expressly recognising special skills was Whiteley & Whiteley.102 Rowlands J found that, despite Wendy Whiteley’s role as mother, and inspiration and general aide to her husband Brett’s successful artistic career, nevertheless the husband had made ‘by far and away the major contribution to the substantial assets the parties now have’.103 Accordingly, the husband was awarded 67.5 per cent and the wife 32.5 per cent of the parties’ assets. 14.26 The decision of Ferraro presented the Full Court (Fogarty, Murray and Baker JJ) with the opportunity of providing detailed analysis of the doctrine of special contributions. The Full Court recognised the difficulties of comparing

[page 868] contributions to property with contributions to the welfare of the family, these being ‘fundamentally different activities’.104 Their Honours also acknowledged the ease with which financial contributions can be assessed compared with non-financial contributions, and the resulting tendency to undervalue the homemaker contribution. However the Full Court concluded its judgment with express endorsement of the husband’s ‘special’ financial contributions: So far as the husband is concerned there is no doubt that, especially in the last decade of the marriage, by his special skills and endeavour he greatly increased the assets of the parties to the level at which they were at the time of the trial. In accordance with authority, those special skills are entitled to recognition as an extra or ‘special’ contribution. (emphasis added)105

14.27 Following Ferraro, a number of decisions endorsed the doctrine of ‘special skills’, with the high-water mark for special contributions being reached in the 2000 case of JEL v DDF.106 The Full Court (Kay, Holden and Guest JJ) referred to and approved the following comments in McLay & McLay:107 What I do take their Honours [in Ferraro’s case] to be saying is that if the existence of ‘special factors’ or the application of ‘special skills’ to the accumulation of assets is established, that may justify the Court considering that contribution through the performance of the role undertaken ‘to be above the normal range’, entitling a party to recognition of an ‘extra’ or ‘special’ contribution. But it is the existence of ‘special factors’ or ‘special skills’ which attracts the added weight to a role which would not otherwise be qualitatively assessed, but left to be considered to be within the normal range.108

The Full Court in JEL went on to say: The issue of a ‘special’ or ‘extra’ contribution by the husband or wife is a question of fact. In our view, the determination of such a contribution is not necessarily dependent upon the size of the asset pool or the ‘financial product’ achieved by the parties. … One can imagine a number of examples where a ‘special’ contribution may not necessarily result in assets to a value of millions of dollars but which ought nevertheless to be recognised.109

[page 869] After reviewing the case law relevant to the issue of special contributions, the Full Court in JEL provided the following general principles: (a) There is no presumption of equality of contribution or ‘partnership’. (b) There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife. (c) Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case. (d) In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them. (e) The court will recognise any such special factors as taking the contribution outside the ‘normal range’ in the sense that that phrase was understood by the Full Court in McLay, above. (f) The determination of an issue of whether or not a ‘special’ or ‘extra’ contribution is made by a party to a marriage is not necessarily dependent upon the size of the asset pool or the ‘financial product’. When considering such an issue, care must be taken to recognise and distinguish a ‘windfall’ gain. (g) While decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles. (h) It is ultimately the exercise of the trial judge’s own discretion on the particular facts of the case that will regulate the outcome. (i) In the exercise of that discretion, the trial judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.110

However, as discussed below, in Hoffman & Hoffman111 the Full Court (Faulks DCJ, Murphy and Watts JJ) appeared to have a change of heart, rejecting the argument that these ‘principles’ were to be regarded as ‘legitimate guidelines’ and thus binding on the lower courts. Their Honours also noted that the FLA did not specifically refer to special contributions: see 14.4–14.6 for further discussion.

The fall and fall of special contributions

14.28 Shortly after the JEL decision, the Full Court (Nicholson CJ, Ellis and Buckley JJ) reconsidered the special contributions issue in the 2002 case of Figgins & Figgins:112 see 14.52. In this case, the trial judge (Carter J) had held that a sizable [page 870] inheritance received by the husband was not a windfall but rather a ‘special factor’, in the sense that the term was used in McLay and explained in JEL.113 The Full Court held that the trial judge had erred in finding that the inheritance was a special factor of skill or capacity which had produced the result that there was a loading in favour of the party providing it.114 Once they had found that the inheritance was not a special factor, it was unnecessary to discuss the matter further; however, in their joint judgment, Nicholson CJ and Buckley J suggested (in obiter) that the so-called doctrine of special contributions should be reconsidered: 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.115

Commenting on this decision, Anthony Dickey noted that the Full Court had told us ‘not what the law is, but what the law probably is not’.116 The issue of special contributions arose again in the 2005 case of Marriage of Hill.117 While the Full Court did not ‘reconsider’ the socalled doctrine, their Honours did consider (and under the circumstances rejected) whether the increase in the parties’ asset pool (post-separation) ought to have been regarded by the trial judge as resulting from the husband’s ‘special stock broking skills’ or as a result of ‘market forces’ in the nature of a windfall.118

Following Hill in 2005, there were three significant first instance decisions that examined the concept of special contributions and, at least in the case of a long marriage, leaned towards a partnership approach, hence casting serious doubt over the relevance of a doctrine of special contributions.119 The time was therefore ripe for the Full Court to reconsider the notion of special contributions. However, it was not until close to a decade later that three Full Court decisions following in quick succession finally put to rest the so-called doctrine of special contributions. [page 871] 14.29 The first of these decisions, Kane & Kane,120 concerned the division of a self-managed superannuation fund. In the last year of the marriage the husband, following extensive research and despite the wife’s objections, invested a large portion of the fund’s money in shares in a company, the value of which subsequently increased dramatically. This investment was described by the trial judge, Austin J, as a ‘spectacular success’.121 His Honour found that that the growth of the superannuation had no relationship with the market forces and that the husband’s decision was an ‘inspired investment decision, manifesting considerable 122 expertise’. On the basis of this investment, Austin J assessed that the husband’s contribution to the superannuation interests were substantially greater than those of the wife and made orders dividing the superannuation in proportions of two-thirds to the husband and one-third to the wife. The Full Court allowed the wife’s appeal and remitted the matter for rehearing. In doing so, May and Johnston JJ, in a joint judgment, recognised that Austin J was entitled to conclude that due to the husband’s diligence, and effort in purchasing the shares, his contribution to the superannuation interests were greater than the wife’s. However, they held that Austin J had disproportionately attributed contributions to the husband. The

funds invested were accumulated over the course of a nearly 30year marriage, but the husband’s successful contributions were made over a short period of time.123 Faulks DCJ, in a separate judgment, provided the strongest criticism of the doctrine of special contributions. His Honour found that the trial judge’s discretion had miscarried in that he incorrectly considered that he was bound by authority to acknowledge ‘special’ skills when determining property settlement. His Honour made some important remarks regarding special contributions, including that it is often not possible to correlate ‘special skill’ with the financial results, and indicating the difficulties in applying the doctrine. So far as Faulks DCJ was concerned, Austin J had ‘given an unacceptable weight to the special skills of the husband’,124 and had not effectively evaluated the contributions of both parties. Both Full Court judgments observed that it was highly unlikely that if the husband’s investment had resulted in a loss, the husband would have agreed to have borne the loss alone.125 All judges entertained the possibility that the husband’s contributions to the superannuation fund may have been of greater value than the wife’s, but said that such a conclusion should not have been based on the husband’s so-called ‘special skills’. Without specifically rejecting the doctrine of special skills, May and Johnson JJ advocated a cautious approach to special contributions, it being ‘essential that such conclusion reflects what the [page 872] legislation demands’,126 whereas Faulks DCJ was more forthright in his criticism and rejection of special skills.127 Importantly, the decision in Kane indicated that considerations of special contributions could not fetter the court’s discretion.128 14.30

In the second Full Court decision, Hoffman & Hoffman,129

the parties had been married for 36 years. The husband, a selfrepresented litigant, appealed against a finding of the trial federal magistrate dividing the $10 million asset pool equally between the parties on the basis that his contributions should have been regarded as ‘special’. The Full Court concentrated on determining whether the so-called doctrine of special skills was binding on the lower courts and concluded that, if binding rules of law could indeed be made (see 14.4–14.5), there is no binding rule of law concerning special contributions. Equally, in relation to whether any legitimate guideline has been developed in this regard, their Honours said: No decision to which we have been referred, nor any decision revealed by our own researches, reveals any principle enunciated with the clarity required to underpin a ‘legitimate guideline’ in respect of ‘special contributions’. Additionally, no class or category of case can be defined in which any such asserted principle can be said to apply universally.130

Not surprisingly, given their decision, this Full Court (Faulks DCJ, Murphy and Watts JJ) was critical of the notion of special contributions and observed that was nothing in the legislation that made some contributions more special than others. Their Honours noted that the doctrine of special contributions tended to discriminate against the spouse who made the homemaker/parent contributions as against the spouse who made financial contributions. Significantly, the Full Court endorsed O’Ryan J’s comments in D v D131 that ‘the notion of special contribution has all been a terrible mistake … what I have to do is identify and assess the contributions made by each of the parties without any presumption of entitlement’ (original emphasis).132 The Full Court therefore clearly held that there is no binding rule of law, or legitimate guideline in respect of ‘special contributions’. It remains within the wide ambit of the trial judge’s discretion to determine what weight is to be given to the various contributions: in this case, his Honour was entitled to decide that the parties’ contributions were equal. The decision does suggest, however, that

[page 873] the mere fact that a breadwinner spouse generates assets with a very high value is not necessarily a reason for their contributions to be weighted more heavily than their homemaker spouse. The Full Court was also clear that, as decided in Mallet133 (see 14.19), there is no presumption of equality of contribution. This decision suggests that in the future ‘big money’ cases might be decided very differently from cases like Ferraro134 and JEL:135 see 14.25–14.27. The ratio of this decision revolved around there being no binding rule of law or legitimate guideline regarding special contributions. One final Full Court decision was required to sound the death knell for special contributions (though of course it is possible a High Court challenge could alter the position). 14.31 The facts of the final decision in this triumvirate of cases, Fields & Smith,136 are strikingly similar to Ferraro. The parties had few assets at the commencement of their relationship, but during the course of the 29-year marriage they built up an asset pool of over $30 million. The husband was a carpenter, and through the use of his skills the parties had established a successful construction company. Throughout most of the relationship, the wife was engaged in home duties and was primarily responsible for raising the three children of the marriage. She was also a director and shareholder of the family business. The trial judge, Murphy J, described the parties’ relationship as ‘two individual lives [which] have merged into a marriage partnership with a commercial manifestation’,137 and observed that both parties had made exemplary contributions within their specific spheres: the husband predominantly to the family business and the wife predominantly to the welfare of the family. However, unlike the judge in Ferraro, his Honour was critical of the notion of special skills and rejected the term ‘special contributions’ as apt to mislead and obscure. Murphy J carefully described and balanced the parties’ contributions as equally important and valuable. Yet,

his Honour curiously made orders dividing the asset pool 60 per cent to the husband and 40 per cent to the wife. The wife appealed this order, arguing that the asset pool should have been divided equally between the parties, and the husband cross– appealed, arguing that based on his special contributions the asset pool should have been divided 70 per cent in his favour. The Full Court (Bryant CJ and Ainslie-Wallace J in a joint judgment, and May J in a separate judgment) upheld the wife’s appeal and dismissed the husband’s cross-appeal. The wife’s appeal was upheld on the basis that the Murphy J had placed significant emphasis on the husband’s ‘stewardship’ of the business postseparation, yet there was little evidence indicating that the husband’s post-separation contributions had [page 874] exceeded the wife’s.138 The trial judge had thus failed to adequately explain the disparity in the assessment of their respective contributions. Furthermore, Murphy J had incorrectly relied on a table of ‘comparable cases’ in which the doctrine of special contributions had been applied. The 40 per cent of the asset pool which Murphy J awarded to the wife represented the upper limit of awards to homemaker spouses in the cases in the table, but according to the Full Court the table nevertheless acted as a fetter on the exercise of the discretion.139 The discretion was re-exercised and orders were made providing that the asset pool be divided equally between the parties. The Full Court in Fields took the opportunity of endorsing the differently constituted Full Court’s comments in Hoffman that there is no principle or guideline rendering direct financial contributions more important or special when compared with other contributions, and in this respect clearly stated: … the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that

category or class, more valuable or important than another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.140

In this context, the Full Court finally dispelled the idea that the doctrine of special contributions may potentially be resurrected, stating as follows: … the notion, if there ever was one, that for some reason the wealth of parties itself, particularly in relation to business interests, should axiomatically mean that the party involved in the business is entitled to more, … has been put to rest.141

14.32 Thus unless there is a successful High Court challenge the so-called doctrine of special contributions has been given its last rites and burial. Fittingly, in the recent decision of Trask & Westlake,142 which involved a $7 million asset pool, the words ‘special contribution’ were not mentioned: see 14.15. However, the demise of special contributions has also raised a number of questions regarding the practical consequences of the three decisions discussed above, including:143 One of the issues with identifying contributions as ‘special’ was that once identified, the party who had made those contributions would automatically [page 875] receive a loading in his or her favour. Clearly this will no longer be the case. However the Full Court’s direction to weigh up all the parties’ contributions will result in contributions formerly recognised as ‘special’ continuing to be taken into account, thus calling into question the practical consequences of these decisions. The Full Court appears to have implicitly endorsed a partnership approach to property division; however, the High Court in Mallet144 has clearly eschewed equality as a starting point while sowing the seeds for recognising special skills. Does rejection of

special contributions indicate that the courts are likely to start (practically speaking) from a presumption of equality? All three decisions considered involved long marriages. Would the result have been the same if the relationship was of short duration? Is there still a place for ‘special skills’ to be taken into account on the breakdown of a short marriage or de facto relationship? If the wife in Fields had not had some involvement in the family business, would there have been a similar outcome? The retreat from special skills has thus raised a number of consequential issues. How these will be resolved remains to be determined.

Financial misconduct 14.33 The financial misconduct of one of the parties which has resulted in a significant depletion of the asset pool is sometimes referred to as ‘negative contributions’. The policy issue of whether conduct should be at all relevant to the determination of property settlement entitlements must be set in its proper historical context. In Chapter 10, it was observed that matrimonial fault (in the traditional sense of responsibility for breakdown of marriage) was highly relevant to both maintenance and property division under a system where divorce itself was based on the doctrine of the matrimonial offences. The FLA changed the whole conceptual approach to marriage breakdown. It established the fact of irretrievable breakdown of marriage as the sole ground for divorce, to be evidenced by the (neutral) fact of a period of separation. What was to be the effect on financial provision of this fundamental shift away from considerations of matrimonial fault? 145

14.34

The conduct of the parties is not specifically mentioned in

the financial provisions of the FLA, and thus in the early days of the Act it was determined as [page 876] being irrelevant to determining property settlement between parties unless there were financial consequences arising from the party’s conduct.146 However, especially in relation to family violence (see 14.37–14.40), there was considerable agitation for negative conduct to be taken into account. In Polonius & York,147 the Full Court confirmed that there are essentially two categories of cases where conduct may be relevant, and a number of junctures within the s 79/90SM process at which financial misconduct or financial misbehaviour may be taken into account: At the opening of the inquiry when the property of the parties is identified: At this point, dissipated assets (see the discussion at 14.35) may be taken into account as ‘notional property’ or ‘add backs’. This option, and its future uncertainty (following the decision in Stanford),148 has already been discussed in Chapter 13: see 13.26–13.29. When assessing the contributions of the parties under s 79(4)(a)– (c)/90SM(4) (a)–(c): Here the court may also take account of conduct that dissipates assets, as well as a course of conduct — including violence — by one party against the other, where the conduct had a discernible adverse impact upon the contributions of the other party or made the other party’s contributions more arduous than they ought to have been.149 A majority of the Full Court in Kennon & Kennon150 (Fogarty and Lindenmayer JJ) stated a clear preference for this approach to any suggestion of ‘negative’ contributions. Although family violence was the context in which these dicta were voiced, it was clear that their application is not limited to situations of family violence and it is intended to apply to situations involving

financial losses generally:151 see further 14.41–14.42. In Hill & Hill,152 the husband unsuccessfully attempted to argue that the wife’s conduct warranted an adjustment in his favour as she ‘disrupted and interfered’ with his business operations, including diverting money and emails. The Full Court rejected this argument in the context of a $10 million asset pool and a 17year marriage.153 However, it should not be assumed that in the appropriate situation such an argument will be unsuccessful. [page 877] When considering the s 75(2)/90SF(3) factors pursuant to s 79(4) (e)/90SM(4)(e), ‘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)/90SF(3)(r). Early decisions such as Antmann & Antmann154 recognised the potential for s 75(2)(o) to be utilised to take into account conduct of a party with negative financial consequences. However, Baker J in the 1981 case of Kowaliw & Kowaliw155 (see below) provided some clear guidelines as to when this will be appropriate. 14.35 In Kowaliw & Kowaliw,156 the husband was found by the court (Baker J) to have lost money by permitting a prospective purchaser (who did not ultimately purchase the property) to occupy the matrimonial home free of rent or contribution to outgoings for about a year. His Honour held that the husband’s actions were ‘commercially inept and economically reckless’, and he should be ‘solely responsible for the consequent loss’.157 His Honour also provided the following comments: As a statement of general principle[,] I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances: (a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or

(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value. Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.158

14.36 The guidelines expressed by Baker J in Kowaliw (see 14.35) were considered by the Full Court in the 1999 case of Browne & Green.159 In this case, the trial judge (Moore J) determined that the husband should bear sole responsibility for the financial losses suffered by a business venture (due to his initiation and control of it), but her Honour made no finding that the husband had ‘embarked upon a course of conduct designed to reduce or minimise’ the value of the parties’ assets, or that the husband had acted ‘recklessly, negligently or wantonly’ with [page 878] the assets, thereby causing their reduction in value.160 In allowing the husband’s appeal, and confirming that Kowaliw creates legitimate guidelines in this regard, the Full Court held: … that it was manifestly unjust to the husband in this case to depart from the Kowaliw guideline and to place upon him the full burden of the losses, merely on the basis that he was that party who initiated and had overall control of the venture which led to the financial losses, particularly in circumstances where there is no suggestion that the wife was anything other than a willing participant.161

To come within the scope of s 75(2)(o)/90SF(3)(r), the conduct must be broadly financial in character. Included under the umbrella of s 75(2)(o)/90SF(3)(r) is the notion that one of the parties has wasted assets.162 Each case will need to be decided on its own particular circumstances. Allegations may include alcohol or drug abuse, as well as a gambling addiction, which have resulted in the failure of a business venture or the dissipation of assets.163 However, if a party can establish that their conduct is

genuinely beyond their control — for example, a diagnosed addiction to gambling — then it may not fall within the Kowaliw guidelines.164

Family violence 14.37 For many years, the consistent approach of the Family Court to conduct in general was to take only its consequences into account, and then only the direct financial consequences. This was true even where the conduct in question was violence of a serious kind within the family. Thus it could be relevant in proceedings under Pt VIII of the FLA only if it had financial implications, for example, by diminishing the earning capacity of the victim.165 Where violence had no adverse effect on the victim’s earning capacity, it was commonly discounted.166 That this was part of the ‘no-fault discourse’ following the introduction of the FLA is well demonstrated by the following 1995 extra-judicial statement from the Hon Kemeri Murray: The court must look at the existence of the contributions and needs of each party, and, not how they were caused. If a wife’s loss of economic capacity is

[page 879] caused by being knocked over by a bus or from being beaten by her husband, her needs are assessed in the same way. The cause of the injury is by itself not an issue. Furthermore, according to these dicta, a husband is not to be punished for his conduct.167

It was somewhat understandable for the Family Court in the years immediately following the introduction of no-fault divorce to try and prevent the reintroduction of fault considerations in financial proceedings through the ‘back door’. Regretfully, this lead to ‘an overzealous approach to the exclusion of evidence of family violence’.168

14.38 Since the early 1990s, feminist commentators have argued that the no-fault discourse adopted by the Family Court in relation to both Pts VII and VIII (and now Pt VIIIAB) served to downplay or even ignore the detrimental effects of violence within the family. In 1993, Behrens169 argued that ‘the courts have retreated behind no fault discourse to strike out allegations of … violence’, and that there are ‘strong narrative arguments for allowing the fact of violence against women in the home to benefit women in financial adjustment proceedings’.170 Behrens went on to argue that the Family Court could take account of violence in proceedings under Pt VIII of the Act in its current form either as a ‘negative contribution’ to the welfare of the family under s 79(4) (c), or as creating needs in the victim (under s 75(2)). Central to Behrens’ argument was that violence is a form of conduct quite distinct and distinguishable from other forms of conduct, and therefore that a greater acknowledgment by the courts would not reintroduce considerations of matrimonial conduct generally.171 This is part of a wider debate about gender bias in the exercise of judicial discretion in family law (and other areas too), and of a growing perception that family violence is a central issue in the struggle for women’s equality.172 14.39 Not surprisingly, this thesis aroused both controversy and support from diverse quarters. Whether violence is capable of consideration by courts quite [page 880] distinct from other sorts of behaviour — such as adultery — was open to question.173 It was questioned whether, if it is considered desirable to take account of violence in Pt VIII (now Pt VIIIAB as well) proceedings both in the context of contributions and prospective factors. It was questionable whether this could in fact be achieved under the existing statutory provisions, given the

then long-established pattern of case law on the interpretation of ss 75(2)(o) and 79(4)(c).174 It was thought that legislative amendment was therefore required. In the mid-1990s this appeared to have the support of the then Chief Justice of the Family Court of Australia.175 The Australian Law Reform Commission (ALRC) had recommended that any legislative formulation allowing the court to depart from equality should include a reference to the impact of violence on past contributions and on future needs.176 In 2001 the Family Law Council submitted a ‘Letter of Advice: Violence and Property Proceedings’ to the Attorney-General recommending that the FLA be amended to recognise the effects of family violence on the contributions of the parties. However, neither of these recommendations have been adopted. 14.40 In the absence of legislative change, the Family Court itself responded to the new thinking on violence. In the 1995 case of Marriage of Doherty,177 the trial judge (Rourke J) divided the property 65 per cent to the wife and 35 per cent to the husband. In so doing, his Honour assessed the parties’ respective contributions as equal and made a 15 per cent allowance in the wife’s favour for the s 75(2) factors. In assessing the parties’ contributions, his Honour took account of the husband’s drinking habits, and domestic violence and aggression towards both the wife and the children. The Full Court (Baker J; Fogarty and Hannon JJ agreeing) dismissed the husband’s appeal. Baker J observed: Although the trial judge did no more than record these events, it is clear from his findings that the wife’s contributions as homemaker and parent may have been increased as a result [the husband’s behaviour]. Although the domestic violence complained of related to a relatively small period of time at the end of the marriage, nevertheless his Honour would, in my opinion, have been entitled to have found that because of the appellant’s conduct, the respondent’s contribution as a homemaker was increased and the appellant’s similar contribution diminished as a consequence …178

[page 881] This was an extremely important development. It was the first case in which family violence was directly taken into account in the context of the assessment of contributions under s 79(4).

The Kennon decision 14.41 This view was further strengthened by the Full Court in the 1997 case of Kennon v Kennon.179 In this case, the wife had filed an application seeking a property settlement and included (as was then permitted) a cross-vested common law claim for damages for assaults alleged to have occurred during the marriage. The parties’ property was valued in the region of $8.7 million, all of which the husband had brought into the five-year relationship. There were no children of the marriage. Following the hearing, the trial judge (Coleman J) made an order under s 79 that the husband pay the wife $400,000, half of which was to reflect the wife’s contributions and the other half of which was by way of an adjustment for prospective factors. His Honour found that the wife had made no contributions under s 79(4)(a) and that she had made very limited contributions under s 79(4)(b). In relation to s 79(4)(c), his Honour took into account a number of circumstances that limited the wife’s claim, including the fact that the parties had domestic assistance in the home.180 In relation to future needs, his Honour concluded that he was not satisfied that the duration of the marriage181 had affected the wife’s earning capacity and that no substantial adjustment should be made for that circumstance. In relation to the cross-vested claim, the trial judge awarded damages of $43,000. Both parties appealed. The wife’s appeal in relation to the adequacy of her s 79 claim succeeded (per Fogarty and Lindenmayer JJ; Baker J dissenting). The husband’s appeal in relation to the damages claim failed. In relation to the relevance of

domestic violence in s 79 cases, the majority made some interesting and important observations. Fogarty and Lindenmayer JJ commented: It is only in more recent times that the pervasiveness and destructiveness of domestic violence have been at least partly acknowledged in Australia. Whilst there is no reason to suggest that domestic violence is more prevalent in society now than it was in previous generations, until recently both the law and society generally cast a veil of silence over it, preferring to proceed on the basis that either it did not exist or that it was inappropriate for society or the law to intervene in disputes within the ‘private’ sphere of the home. There has in more recent times been a marked and long overdue change in those attitudes and a

[page 882] greater social and legal awareness of and disapproval of domestic violence and past attitudes to it. The law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences.182

In relation to the ‘contributions’ issue, all three appeal judges considered the relevance of domestic violence in the context of the family contribution under s 79(4)(c).183 In their judgment, Fogarty and Lindenmayer JJ stated: 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’ which is sometimes referred to in this discussion. In the above formulation, we have referred only to domestic violence … but its application is not limited to that.184

After Kennon 14.42 The decision in Kennon, recognising the impact of family violence in relation to property settlement, has found favour185 or been adopted186 in subsequent cases, but has nevertheless

attracted criticism. This criticism has largely revolved around the emphasis on the victim’s positive contributions rather than the perpetrator’s negative contributions.187 In addition, the practical application of the Kennon test has raised cause for concern. It is evident that many judicial officers feel uncertain about when and how to make an adjustment based on Kennon, and it has been suggested that this uncertainty may result in Kennon factors not being argued in appropriate cases.188 The approach taken by the Full Court in Kennon was [page 883] questioned by Brewster FM in the 2010 case of Palmer & Palmer.189 In this latter case, his Honour stated that ‘contributions are to be measured in absolute terms and not weighed by considerations of arduousness, whether caused by domestic violence or otherwise’.190 However, the Full Court has not resiled from the Kennon approach, though it has never been explicit as to whether Kennon lays down a legitimate guideline (see 14.2–14.5). It may be that in reality, Kennon acts as something of a reverse guideline — this is because the effect of Kennon is that violence cannot be taken into account unless the Kennon criteria are met; if they do apply, the normal discretion applies as to whether to make an adjustment on that basis. In the 2012 decision of Baranski & Baranski191 the Full Court distanced themselves from the requirement that the violence must take place during the ‘course of the marriage’. The parties had been living in a volatile de facto relationship fraught with domestic violence, culminating in one episode that occurred immediately prior to separation and another that occurred after separation. The federal magistrate made a Kennon-type adjustment of 10 per cent in the wife’s favour, which included her postseparation contributions. One of grounds of the husband’s appeal

related to this order, which the husband argued was contrary to Kennon as it took into account violence that had occurred at and after separation. The Full Court rejected this ground of appeal, commenting: … we find nothing in the provisions of s 79 or in logic which suggest that postseparation contributions of any kind are not relevant to determining a just and equitable apportionment of the property of parties to marriage. Indeed, … it would be surprising if, as is undoubtedly the case, post-separation contributions of the various kinds falling within s 79(4) were relevant to determining the property entitlements of parties, except those involving or impacted by domestic violence.192

The Full Court thus removed the temporal limitations on family violence as suggested in Kennon, and in accordance with other recent Full Court decisions (discussed at 14.45ff) continued a trend of adopting a more holistic approach to property settlement, one which examines the entire contribution history of the [page 884] parties. This was aptly expressed most recently in Hearne & Hearne,193 where the Full Court confirmed that the approach of the court should be ‘to identify the respective contributions of the parties including their initial contributions, their contributions during the relationship, and their contributions post-separation, and to attach appropriate weight to all of those contributions in arriving at an overall assessment of the respective contributions of the parties, usually in percentage terms’.194 14.43 What have been the practical consequences of the courts applying the Kennon guidelines? Empirical evidence indicates that the application of Kennon is limited and has resulted in relatively small adjustments.195 A recent study of 57 first instance judgments found that only 42 per cent of applications for a Kennon adjustment were successful, with a mean adjustment of 7.3 per cent.196 Moreover, research indicates that women who are exposed

to family violence are more likely to receive a lower percentage of the asset pool, irrespective of whether the matter is resolved by consent or judicially determined.197 Calls for legislative reform continue. Whether such calls will be heeded and the exact nature of such reforms remains to be determined.198 14.44 Another development is the recognition of a ‘public policy’ element in s 75(2)/90SM(3). In a number of cases, on the basis of those subsections the Family Court has required a party to bear the full burden of the consequence of that party’s violent conduct. In two cases from the 1990s, Marriage of Marsh199 and Re Q,200 the court refused to make a notional deduction from a husband’s resources in respect of damages awarded against him for assault. [page 885] Moreover, in the 1993 case of Homsy, Yassa and the Public Trustee,201 the court refused to countenance the husband’s argument (in a s 79(8) application) that he should be given an increased share of property by virtue of s 75(2). He had killed the wife in the presence of the children. The court stated: In essence, though not put this way by his counsel, the applicant maintains that he has needs for accommodation, that he has health problems, that he has limited or no capacity to be employed for a variety of reasons relating to his health and his criminal record, and that, in all the circumstances, s 75(2) should operate to increase his entitlement beyond that which he achieves by contribution. I do not accept that this is so. In my view, the applicant having terminated the life of the deceased, and thereby rendering inappropriate s 75(2) factors which previously significantly favoured the deceased cannot himself have the benefit of those factors. To do so would be offensive to justice and equity, whether that is considered in the context of s 79(2) or s 75(2)(o) of the Act.202

Contributions

Initial contributions 14.45 The provisions of the FLA relating to the assessment of contributions (s 79(4) (a)–(c)/90SM(4)(a)–(c)) provide no indication that there should be any temporal limitation on taking into account contributions made to the relationship/marriage. In the early decision of Marriage of Olliver,203 the Full Court made clear that contributions made during cohabitation but prior to marriage were to be taken into account in determining the parties’ property settlement. Moreover, other decisions indicate that contributions made prior to the parties cohabiting may, in appropriate circumstances, be taken into account following the relationship breakdown.204 The question of how the court should take into account substantial assets brought into the marriage or de facto relationship has been the subject of judicial and academic discussion. In short relationships, these contributions will be of greater significance than in long relationships. Over a series of cases, the Family Court suggested that in marriages of long duration, the significance of direct financial contributions (particularly those made at the start of the relationship) may be eroded both by the passage of time itself and the offsetting effect of the [page 886] other party’s contributions.205 In the 1998 case of Marriage of Pierce,206 however, the Full Court expressed caution as to the idea of contributions being eroded: In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution … There is an

obligation on a trial judge not only to identify the relevant contributions but also to assess them. In this case his Honour failed to adequately, or at all, assess these contributions. In our view he failed to properly weigh the greater initial contribution of the husband, with all other relevant contributions, and seems not to have had regard to the use made by the parties of the husband’s greater initial contribution.207

Thus, rather than viewing the initial contributions as eroding over time, a court should view the initial contributions as susceptible to change over time. The Full Court in Pierce emphasised the need for the court to take into account the totality of the contributions over the duration of the relationship. The Full Court also emphasised that in deciding what weight should be attached to the initial contributions, the court must consider the use that had been made of those contributions. 14.46 This view was affirmed by the Full Court in the 2005 case of Brown & Brown,208 where the court, while acknowledging the contributions of the husband, 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. According to their Honours: We are satisfied those principles [referring to Pierce] are appropriate in this matter. However, we are of the opinion that the trial judge’s assessment of contribution was in error. The evidence does not support a finding that the cane farm could be regarded as ‘an extensive business enterprise’ … [The trial judge’s finding] does not properly reflect the wife’s contributions during a very long term marriage, those contributions spanning the period before the

[page 887] acquisition of the cane property, and for over 20 years after its acquisition, and is outside the reasonable ambit of discretion.209

Shortly afterwards, in the 2007 decision of Williams & Williams,210 the Full Court noted that regard must be had to the use the parties made of the initial contributions, and that recognition should be given to the value of the assets at the time of the hearing or when

such assets were realised. There is thus no assumption that such assets should be divided equally. 14.47 Nevertheless, initial contributions of the parties, especially where they represent the foundation of the parties’ asset pool at the date of the hearing, continue to play a part in weighing up the parties’ contributions.211 In Calder & Calder (No 2),212 after a 33year marriage the net assets of the parties amounted to over $13 million. Berman J made a 7.5 per cent adjustment in favour of the husband based on his findings that the husband’s initial contributions provided the springboard for the future wealth of the parties.213 Thus, although there is no requirement to establish a nexus between the initial contributions and the final asset pool,214 the initial contributions of the parties remain relevant, particularly where the property held at the time of trial can be traced directly to assets brought into the relationship.215

Post-separation contributions 14.48 Contributions made after separation should also be considered: case examples include Marriage of Lalor216 (the wife’s payment of rent for accommodation after separation), Marriage of Ferraro217 (the wife’s care of children and the husband’s use of her share in property after separation), Marriage of Gould218 (mortgage and loan repayments by both parties on various properties) and Farmer v Bramley219 (a lottery win by the husband). [page 888] The question of the weight to be given to post-separation contributions has caused some difficulty, especially when it requires the homemaker/parent contribution to be balanced against financial contributions. In Jacobson & Jacobson,220 the wife had made substantial homemaker/parent contributions looking

after a severely handicapped child with little financial assistance from her high-earning husband. The wife made no claim against the post-separation assets, although Lindenmayer J thought she might have been able to do so.221 14.49 In the 2014 decision of Marsh & Marsh,222 the parties had been separated for a period of 10 years prior to the wife initiating proceedings. During this period, the husband made largely financial contributions while the wife, who had the care of the parties’ three children, made homemaker/parent contributions. At first instance, the federal magistrate awarded the wife 40 per cent of the $3.1 million asset pool (which excluded superannuation) as well as 30 per cent of the $1.6 million superannuation. The parties had agreed that up until the time of separation, their contributions were equal. The Full Court (Ainslie-Wallace, Murphy and Le Poer Trench JJ) upheld the wife’s appeal against these orders. One of the main issues on appeal was the weight to be given to the parties’ post-separation contributions. Ainslie-Wallace J referred to Farmer & Bramley223 (discussed above at 14.9) and accepted the proposition that a nexus between contributions to the welfare to the family and the property acquired post-separation is not required.224 The Full Court was critical of the first instance decision, which Ainslie-Wallace J described as ‘plainly wrong’.225 The trial judge had failed to place sufficient weight on the wife’s post-separation homemaker/parent contributions as against the husband’s post-separation financial contributions. According to Ainslie-Wallace J: The effect of the Federal Magistrate’s orders was to accept the husband’s argument that he had made the overwhelming financial contribution since 2000 but in which he failed to give effect to his findings that after separation the wife continued to make significant contributions both as to the home and children and also indirectly to the husband’s present earning capacity.226

According to Murphy J, the trial judge had approached the matter incorrectly by asking the question in terms of what adjustment should be made to the equal

[page 889] division of property to take account of the 10 years of separation. The question which should have been posed was: What did an analysis and weighing of all contributions of all types prescribed by s 79(4) made by both parties across 31 years (the approximate 21 years of the cohabitation and the approximate 10 years after their separation) suggest was a just assessment of contributions.227

14.50 It is therefore arguable that the Full Court is moving towards a partnership approach, which covers the entire relationship and includes the totality of the contributions including those made during the post-separation period. This approach was reflected in the recent decision of Fields & Smith,228 where the husband argued (and the trial judge accepted) that the wife’s post-separation contributions were less significant than the husband’s in circumstances where the children of the marriage had reached adulthood: see 14.31. The wife suggested that any downscaling of contribution post-separation ‘would leave women with an unfair burden and economic consequences of role division during marriage.’229 The Full Court accepted ‘[t]he potential for prejudice to a party whose role, accepted and agreed throughout the marriage, changes as the marriage comes to an end and the children leave home and become independent’.230 The court observed that the final result incorporates the s 75(2)/90SF(3) factors and that the court is required to assess whether post-separation assets have been acquired, improved or conserved due to the efforts of one party rather than both. Where the assets have not increased or even diminished post-separation, and the period of cohabitation was lengthy and the period of separation relatively short, ‘careful scrutiny needs to be applied when considering whether a party should have a lesser entitlement to the assets than they might have had if the trial had occurred at the date of separation simply because they were not contributing to the same extent in the capacity of homemaker and

parent’.231 Importantly, in a recent Full Court decision, following Fields and the strong dicta regarding the weight to be given to contributions to the welfare of the family, the Full Court in Trask & Westlake232 (discussed above at 14.15) assessed the wife’s postseparation contributions to the family as equal to the husband’s financial contributions.

Gifts 14.51 It is not unusual during a marriage or de facto relationship for the one of the parties to receive a gift from a third party; for example, their parents or [page 890] other family members. This might take the form of a direct financial contribution — for example, where the wife’s parents provide a deposit for a home — or an indirect financial contribution — for example, where the husband’s parents allow the couple to live with them rent-free while they renovate their home. In such a case, this will generally be regarded as a contribution made on behalf of the party who receives the gift.233 The court will examine the intention of the donor to ascertain whether the property was intended as a gift to both parties or to one of the parties. A parent–child relationship in and of itself establishes an assumption that a gift is to that spouse alone. The Full Court in Kessey & Kessey234 summarised the law as follows: … a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.235

If a gift is ostensibly made to both parties, the court may have regard to ‘motivating circumstances’.236 An example might be where the gift was made to both parties to please their child. In

such circumstances, the court might still regard the gift as a contribution on behalf of the son or daughter. In Pellegrino & Pellegrino,237 the parties resided for 17 years out of an 18-year marriage in rent-free accommodation which the wife’s parents owned, and as a result accumulated other assets. Chisholm J regarded the provision of rent-free accommodation as a significant contribution made on behalf of the wife. His Honour found that the wife’s parents intended to benefit their daughter, although they were aware that the accommodation would also benefit their son-in-law.238 When assessing the weight to be placed on a gift to one of the parties, the court will take into account the length of the relationship as well as the timing of the gift. Where the court does not wholly accept an argument that funds provided to a party by (usually) relatives (and usually parents) is a loan that must be deducted from the asset pool, and the ‘loan’ is either discounted or ignored (see 13.30–13.32), then the court may adopt the position that the sum in question was instead a gift, and so constitutes a contribution made on behalf of the related party. [page 891]

Inheritances 14.52 As with gifts, the timing of the inheritance as well as the duration of the relationship will be of utmost importance. In Bonnici & Bonnici,239 the husband received a substantial inheritance shortly before the marriage ended. The Full Court suggested that while an inheritance does not fall into a protected category, where an inheritance is received towards the end of the relationship, and if there are ample funds from which an appropriate property settlement can be made, the inheritance would usually be treated as the entitlement of the beneficiary. However, the Full Court emphasised that the way in which an

inheritance is treated will depend on the individual circumstances of the case,240 thus making it clear that there is no legitimate guideline in relation to the exercise of discretion where inheritances are concerned. In Figgins & Figgins,241 the parties had lived together sporadically for seven years and were married for three years. Shortly after the marriage, the husband inherited many millions of dollars. By way of property settlement, the trial judge had awarded the wife $1.1 million out of a $22 million asset pool. The Full Court took the opportunity to clarify the law in relation to inheritances received during a short marriage. To this end, they referred with approval to Lord Nicholls’s dicta in the House of Lords decision in White v White242 as follows: When present, the factor of an inheritance is one of the circumstances of the case. It represents a contribution by one of the parties. The judge should take it into account and decide how important it is in the particular case. The nature and value of the property and the time that it was acquired are among the relevant matters to be considered. However, in the ordinary course, this factor carries little weight, if any, in a case where the claimant’s financial needs cannot be met without recourse to the property.243 On appeal, Nicholson CJ and Buckley J awarded the wife $2.5 million (Ellis J, in a separate judgment, essentially agreed with the joint judgment but would have awarded the wife $2.35 million). In reaching this conclusion the court found that that the trial judge had placed too much emphasis on the husband’s inheritance, leading her to undervalue the wife’s contributions. [page 892]

14.53 However, in Bishop & Bishop,244 the wife had received a substantial inheritance in the 21st year of a 23-year relationship. Purportedly relying on Bonnici, the trial judge had excluded the inherited funds from the property pool. The Full Court held that the trial judge was not constrained by Bonnici, but nevertheless did not uphold this ground of appeal as, according to the Full Court, the trial judge had taken a permissible approach. His Honour had assessed the husband’s contributions to the inheritance as nil, but had taken it into account under s 75(2). Most importantly, the Full Court emphasised that ‘each case in this jurisdiction will depend on its own facts or circumstances’.245 Most recently, in Singerson & Joans,246 the Full Court seemed to adopt a similar approach to inheritances as that adopted to the lottery winnings in Farmer & Bramley:247 see 14.9. In Singerson, the husband received an inheritance of $3 million almost simultaneously with the parties’ separation. The entire contribution history of the parties was examined, and it was found that during the course of the marriage the wife had made both greater financial contributions and greater contributions to the welfare of the family. The trial judge awarded the wife 46 per cent of the total asset pool, which included 20 per cent of the husband’s inheritance. The Full Court was critical of the trial judge’s emphasis on the four-year period between separation and trial rather than the entire 15-year relationship, stating ‘there is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The court is mandated to look at the totality of what the parties have contributed.’248 The wife was awarded 47.5 per cent of the entire asset pool. In monetary terms, the wife received $3.6 million and the husband $3.9 million.

Windfalls 14.54 During the course of a marriage or de facto relationship, property may be acquired through an unexpected or chance event

without any direct effort on the part of either of the parties. Examples might include lottery winnings or fortuitous gains on the stock market. Once again, the particular circumstances of the case will need to be examined. If a party has purchased the lottery ticket, or invested in the stock market, during the relationship using joint funds, it is likely that the parties will be regarded as having contributed jointly. This is the case irrespective of who actually purchased the ticket, as both parties have contributed jointly towards the partnership of the marriage or de facto relationship.249 However, [page 893] if the lottery ticket or share portfolio is purchased prior to cohabitation250 or after separation, it is likely that it will be regarded as a contribution of the party making the purchase.251 In the 2014 decision of Eufrosin & Eufrosin,252 the parties had been married for 20 years. Six months after separation, the wife won $6 million in a lottery. There were four potential sources from which the lottery ticket could have been funded, including from joint funds, and the trial judge, Stevenson J, was unable to identify the precise source of the funds. Her Honour divided the assets into preseparation and post-separation pools, and concluded that prior to separation the parties’ contributions were equal but that the husband had not contributed to the post-separation assets, which included the lottery winnings. However, based on s 75(2) factors, her Honour made a $500,000 adjustment in favour of the husband from the post-separation pool., The Full Court dismissed the husband’s appeal and rejected the focus on the source of the funds; rather emphasising the nature of the parties’ relationship at the time the lottery ticket was purchased: ‘At the time the wife purchased the ticket, regardless of the source of the funds, the “joint endeavour” that had been the parties’ marriage had dissolved; there was no longer a “common use” of property.

Rather, the parties were applying funds for their respective individual purposes’ (original emphasis).253 Again, this decision is reflecting a partnership approach to property settlement, recognising that the partnership (and thus common use of property) generally subsists during the pre-separation period, but less commonly after separation. Interestingly, the Full Court failed to refer to the earlier decision of Farmer & Bramley,254 which also involved post-separation lottery winnings and which resulted in a very different outcome: see 14.9.

Compensation awards 14.55 Compensation awards arising out of personal injury claims will generally be treated as a contribution by the party who receives the payment, but such funds are available for distribution to the other party if the court considers it is just and equitable to do so.255 However, both parties may claim to have made relevant contributions. In Zubcic & Zubcic,256 the husband had been seriously disabled in an accident and the wife had performed nursing activities for him for [page 894] almost 10 years. Rourke J held that while it could not be said that the wife had made contributions to the husband’s damages award, she had made a substantial contribution to conserving the damages as her nursing assistance had saved the parties a considerable amount of money in nursing fees. At times, the court may struggle to balance the weight that should be given to contributions arising out of a damages award against other contributions. During the course of a 23-year marriage, the husband in Danford & Danford257 had sustained considerable injuries as a result of which he received compensation of approximately $1.4 million. This amount was

received immediately prior to separation and amounted to approximately 47 per cent of the asset pool. In assessing the contributions of the parties, the trial judge (Rose J) found that up until the time of the accident the parties’ contributions had been equal, but for seven years prior to separation the wife had made a ‘Herculean effort’. She had assumed responsibility for all the homemaker and parenting duties, including providing the husband with care and attention as well as working seven days a week in the family business. Although his Honour found that the wife had made no contribution to the damages awarded to the husband, on weighing the parties’ contributions he awarded the wife 42 per cent of the non-superannuation assets. The Full Court dismissed the husband’s appeal on the basis that the weight which Rose J placed on the wife’s numerous contributions was within the judicial discretion. Thus the tenor of the judgments emanating from the Full Court indicate that the court is encouraging a holistic approach to all contributions over the relationship history, implicitly (if not quite explicitly) endorsing a partnership model to traditional arrangements, and showing a reluctance to quarantine any sort of contribution irrespective of the source.

Additional factors 14.56 The relevant considerations under s 79(4)(d)–(g)/90SM(4) (d)–(g) of the FLA are in stark contrast to the contributions factors considered under s 79(4)(a)–(c)/90SM(4)(a)–(c). While the latter are retrospective, in that they require assessment of the parties’ contributions to their family and property, these additional considerations require a prospective assessment. If a structured or disciplined approach is taken to the division of property, assessment of the additional factors represents the fourth stage in the process (see 13.39), which is to:

… 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)

[page 895] 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 …258

In other words, the court is required to consider whether a further adjustment of property interests in favour of the spouse who can demonstrate greater prospective need is warranted in the circumstances: see 14.59–14.64.

Section 79(4)(d)/90SM(4)(d): effect on earning capacity 14.57 Section 79(4)(d)/90SM(4)(d) of the FLA requires the court to take into account ‘the effect of any proposed order upon the earning capacity of either party to a marriage’. This provision was considered by the Full Court in the 1985 case of Marriage of Lee Steere.259 Here, the trial judge, relying on s 79(4)(d), allowed the husband to retain a farming property and ordered that he pay the wife a certain sum of money which the husband had argued was the maximum amount that he could raise without selling the farm. The Full Court increased the payment considerably to an amount that it found on the evidence was ‘just and equitable’.260 The Full Court held that there was no special rule for farming properties, and if there was, such a rule would obviously disadvantage the non-farmer spouse.261 In relation to the effect of s 79(4)(d), their Honours stated: … [para] (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.262

Section 79(4)(e)/90SM(4)(e): other factors 14.58 The effect of s 79(4)(e)/90SM(4)(e) is to incorporate the list of factors in s 75(2)/90SF(3) as relevant to property division as well as to spousal maintenance. In Chapter 10 it was observed that those factors are principally prospective in [page 896] nature.263 The factors were drafted primarily with spousal maintenance in mind and this is recognised in the wording of s 79(4)(e)/90SM(4)(e), where in reference to s 75(2)/90SF(3) the words ‘so far as they are relevant’ are used. Not all the subsections of s 75(2)/90SF(3) are equally relevant to property division, with some more appropriate to spousal maintenance, and their application will vary depending on the factual situation before the court.264 In the early days of the FLA, these factors were colloquially referred to as the ‘future needs’ of the parties. However, in Collins & Collins265 the Full Court stressed that in the property context these factors are not referable only to the needs of the parties, but have wider application. The ‘prospective’ element of s 79(4)/90SM(4) permits the court to make a further adjustment of the property interests of the parties to allow for any disparity in their post-relationship financial positions. It is ‘primarily, an analysis of the likely future shaped by the dissolution of the marriage or relationship partnership and the financial consequences of the breakdown’.266 In some cases, no adjustments will be made after the contribution inquiry;267 while in other cases, a loading of as much 25 per cent may be justified based on the s 75(2)/90SF(3) factors.268

Adjustments for s 75(2)/90SF(3) factors are usually expressed in percentage terms, but this need not be the case ‘as it is the real impact in money terms which is ultimately the critical issue’:269 see Lester & Lester,270 discussed below at 14.64.

Increased emphasis on ‘other factors’ 14.59 Throughout the 1980s, judicial application of s 75(2) in the context of s 79(4) was open to the criticism (mirroring that voiced in relation to the evaluation of contributions to the welfare of the family) that inadequate adjustment was made under the ‘prospective component’, and therefore that the disparity in the parties’ economic positions stemming from their role divisions in marriage was inadequately addressed. Small adjustments in the range of only 5–15 per cent were common.271 During the 1990s, and in order to address increasing recognition [page 897] of a phenomenon known as ‘the feminisation of poverty’272 (see 12.5–12.7), the Full Court began to emphasise that s 75(2) can be used in a broad way to adjust economic disparities between the parties.273 The common reality of the inequality in the living standards of husband and wife, and the disadvantage suffered by women with children on marriage breakdown, have been the subject of research and comment.274 In the 1995 case of Waters & Jurek,275 Fogarty J commented: In the majority of property cases little difficulty is encountered in the contribution step and increasingly in the general run of cases the conclusion is likely to be one of equality or thereabouts. There is no doubt that the centre of gravity in the determination of property cases has, especially in more recent times, moved to the evaluation of the s 75(2) factors and the significance of that has been heightened because of recent Full Court decisions which have emphasised those provisions and indicated that they should be given real rather than token weight.276

Notwithstanding this sentiment, the practice of limiting the s 75(2) adjustment to a relatively narrow band persisted, though arguably the band became slightly more generous (10–20 per cent). In Marriage of Clauson,277 the parties cohabited for 10 years and the wife retained care of the four children after separation. The wife had worked during the marriage, but was unemployed at the time of trial. The assets were worth $1.5 million and the husband had a substantial income. The trial judge assessed the wife’s contributions at 25 per cent and made a further adjustment of 15 per cent under s 75(2). In allowing the wife’s appeal, the Full Court held, among other things, that the trial judge’s assessment of 15 per cent fell below the legitimate exercise even of the wide discretion conferred by s 75(2): The relevant factors are quite striking in this case. In particular they relate to the enormous disparity in the income and income earning capacities coupled with

[page 898] the circumstance that the wife is the custodian of four children aged between 3 and 8 … It has long been recognised that in most cases the most valuable ‘asset’ which a party can take out of the marriage is a substantial, reliable, income-earning capacity … 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 a range between 10 per cent and 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.278

Consequently, the Full Court increased the adjustment under s 75(2) to 25 per cent in the wife’s favour.279 Much of the Full Court’s discourse concerns the role of s 75(2) in adjusting disparities arising from marriage itself. According to Fogarty J in Waters & Jurek:280 Disparity in income and income earning capacities is a common basis for making an adjustment under s 79, quite independently of its maintenance implications.

The rationale for that usually lies in the circumstance that the difference in income earning capacities is significant and/or has arisen either directly or indirectly as a consequence of the marriage and the roles which the parties played during the marriage. In most marriages, there is a division of roles, duties and responsibilities between the parties. As part of their union, the parties choose to live in a way which will advance their interests — as individuals and as a partnership. The parties make different contributions to the marriage, which the law recognises cannot simply be assessed in monetary terms or to the extent that they have financial consequences. Homemaker contributions are to be given as much weight as those of the primary breadwinner. On separation, the partnership, and the division of roles and responsibilities which it produced, come to an end. Individually, the parties are left largely in the personal situations that the marriage has assigned to them. However, the world outside the marriage does not recognise some of the activities that within the marriage used to be regarded as valuable contributions. Homemaker contributions, for example, are no longer financially equal to those of the breadwinner. Postseparation, the party who had assumed the less financially rewarded responsibilities of the marriage is at an immediate disadvantage. Yet that party often cannot simply turn to more financially rewarding activities.

[page 899] Often, opportunities to do so are no longer open, or, if they are, time is required before they can be accessed and acted upon … This court values different kinds of contributions of parties equally while the marriage subsists. It would be inconsistent with the equality which that position recognises not to take into account the transformation which the termination of the relationship results in, at least in terms of the capacity for present and future income generation. That is a matter which is independent of the ‘needs’ of the parties. In some cases, it will coincide with the presence of needs, but it does not rely on that presence. It rests on a broader base, one which I think is well characterised as ‘just and equitable’.281

It is notable that in the Australian Institute of Family Studies (AIFS) evaluation of the 2006 shared parenting reforms, there is some suggestion that following these reforms (and presumably because of an increase at the time of trial of shared parenting arrangements) there has ‘been a reduction in the likelihood and extent of these adjustments’. 282 These above dicta in Waters are reflected in s 75(2)(k)/90SF(3)(k),

which refers to the duration of the marriage/relationship and its effects on the earning capacity of the parties.283 However, that is only one factor referred to in the section, and there is clearly no requirement of a nexus between impact of the marriage and the financial ‘disadvantage’ being claimed. Indeed, the factual context in which s 75(2) was argued in Waters exemplifies this. Both parties had high incomes as practising psychiatrists, but the husband earned somewhat more than the wife. The wife did not argue that her lesser income was attributable to her role in marriage. The trial judge nevertheless awarded her $50,000 under s 75(2). The Full Court refused to disturb this. Although much turned on the breadth of the trial judge’s discretion and the appellate court’s unwillingness to disturb his decision, the Full Court was willing to accept that s 75(2) could be used to award an increased share of property as an adjustment for economic disparity between the parties even where that disparity was not the direct result of role division within marriage. 14.60 It might be argued that the outcome in Waters v Jurek reflects an approach to the s 75(2) factors that (impermissibly) moves towards a ‘process of social engineering’, which the Full Court in Waters simultaneously disclaimed,284 as it has [page 900] in other decisions.285 In other words, the question is whether the mere fact that one party earns more than the other, or will have more property after contributions are considered, is sufficient to justify a s 75(2) adjustment, particularly where that disparity does not arise from the circumstances of the marriage. There continues to be a lack of clarity in this regard. Recently, Ainslie-Wallace J — in the 2014 decision of Marsh & Marsh,286 which involved a long marriage in which the wife was homemaker and parent to three children — observed that ‘the huge disparity in the incomes of the

husband and wife, of itself, should have led to a significant adjustment in the wife’s favour’ (emphasis added).287 But that was a case where the income difference was significant and it was a direct consequence of the wife’s role as a parent to the parties’ children. In Hankinson & De Vries,288 the respondent male de facto partner, Mr De Vries, had brought the assets into the 14-year relationship and had a substantial income; the female partner, Ms Hankinson, had three dependent children from another relationship and essentially began working for Mr De Vries’ business at the start of the relationship. At the time of trial, Ms Hankinson had substantially improved her income (she was earning $82,368), the children were no longer minors and she had some years of working ahead of her. Mr De Vries was earning somewhat more than Ms Hankinson, but was nine years older. It was found that the contributions were 80 per cent in Mr De Vries’ favour, resulting in Ms Hankinson receiving $534,134. When considering whether any further adjustment under s 90SF(3) was appropriate, Kent J noted this was the ‘antithesis’ of the kind of case referred to in Waters, where the impact of the marriage had caused significant economic disadvantage to a primary carer parent and that the provisions were not designed to ‘even up’ the parties’ situation on separation. Nonetheless, a 5 per cent adjustment was made in the wife’s favour. 14.61 Section 75(2)(g)/90SF(3)(g) requires the court to take into account a standard of living that is reasonable in the circumstances. While a disparity in wealth may not be sufficient in a case to warrant an adjustment, particularly in a long marriage the standard of living consideration may be significant. In the 1999 case of Marriage of Dickson289 the Full Court disagreed with the trial judge’s decision not to award any s 75(2) adjustment to the husband. In this case, the property pool was around $6.6 million and the trial judge awarded the husband 25 per cent

(around $1.65 million) based on his contributions, as compared to the significant [page 901] contributions made by the wife. On appeal, their Honours accepted that the husband was entitled to enjoy a not dissimilar standard of living to that to which he had become accustomed over 26 years of marriage.290 Consequently, the court made a further adjustment of 5 per cent in favour of the husband (thereby increasing his entitlement to around $1.98 million) on the basis that such an outcome was just and equitable in the circumstances.291

Section 79(4)(f)/90SM4(f): order affecting a party or child 14.62 Section 79(4)(f)/90SM4(f) requires the court to consider ‘any other order made under this Act affecting a party to the marriage or a child of the marriage’. This provision is straightforward and ensures that the court does not make a s 79 order in isolation without considering other orders relevant to the parties and their children; for example, a parenting order,292 a child maintenance order,293 an adult child maintenance order294 or a spousal maintenance order.295

Section 79(4)(g)/90SM(4)(g): child support 14.63 Section 79(4)(g)/90SM(4)(g) is also straightforward and requires the court to consider:

relatively

… any support under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage has provided, is to provide, might be liable to provide in the future, for a child of the marriage.

In Marriage of Clauson,296 the Full Court noted that this provision is identical to that expressed in s 75(2)(na). Given this ‘overlap’, their Honours commented: … it is generally convenient to consider these two sets of provisions at the same time. The weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future. In this case the husband is paying substantial child support and there is no suggestion that he will not continue to do so. It is thus a significant factor which the court should take into account in favour of the husband.297

[page 902]

The contemporary approach to additional factors 14.64 A good example of the Family Court’s contemporary approach to the additional factors, and particularly s 75(2)/90SF(3), can be seen in the recent decision of Lester & Lester.298 The parties had been married for 18 years. The husband was aged 54 and the wife aged 50. The re were four children born of the marriage with whom the father had no contact. The trial judge valued the wife’s contributions at 52 per cent and then made a further adjustment of 25 per cent in her favour. The effect of these orders was that the wife would receive 77 per cent of the asset pool, which translated into net assets of $745,000, compared with the husband receiving net assets of $225,000, of which $198,000 was superannuation. The Full Court was critical of the trial judge for not converting the s 79(4)(d)–(g) adjustment from percentage terms to actual figures. If he had done so, he would have seen the full effect of such an adjustment. The husband’s appeal was upheld as the trial judge that had failed to provide reasons for a 25 per cent adjustment. The Full Court found that

given the wife was receiving 52 per cent of the asset pool based on contributions, an appropriate adjustment for additional factors would have been between 8 and 10 per cent. Moreover, the trial judge had failed to give proper weight to the fact that the majority of the husband’s entitlement were in superannuation which he would not be able to access for many years. The Full Court summarised its reasons as follows: We agree with his Honour that the significant disparity in the income and income earning capacities of the parties, coupled with the wife’s sole responsibility for the day to day care of their four children, requires a significant adjustment in her favour. On the other hand, the fact that the husband will pay substantial child support and, after the payment of child support have a modest income, moderates the magnitude of the adjustment which would otherwise be made in favour of the wife. Worthy of even greater weight is the fact that the husband will receive his property settlement as superannuation. It will be a number of years before the husband is able to access his superannuation, with the probability being that, whereas the wife has capital assets which are immediately available to her and at least provide her with the comfort of a home (plus superannuation), the husband is left with a modest income and no tangible assets from which he must in effect start again, without there being any clear prospect that he could ever manage to acquire a home of his own. With the nature of the parties’ property in mind, an appropriate adjustment would see the wife not having to give the husband anything further and him retaining the entirety of his superannuation.299

[page 903] The Full Court has thus indicated a need to take a holistic approach to property settlement in terms not only of the percentage awarded, but also the nature of the assets that are divided and the practical effects of such orders.

A ‘just and equitable’ order 14.65 The final stage in the structured or disciplined approach (if adopted see 13.39) is to ensure that the order made is just and equitable in all of the circumstances. The Full Court has held that

the directive in s 79(2)/90SM(3) which the court not to make an order ‘unless it is satisfied that in all the circumstances, it is just and equitable to do so’, permeates the entire process. As was said in Bevan v Bevan (No 1):300 ‘although s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable’: see the discussion at 13.34–13.38. At this point, the court has answered the question whether an order altering property interests should be made in the affirmative and has determined the parties’ relative contributions and the specific s 75(2) considerations. However, it must be remembered that s 75(2)(o)/s 90SF(3)(r) requires the court to take account of any ‘fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account’. Further, the court has the discretion to make ‘such order as it considers appropriate’ (s 79(1)), subject to the proviso in s 79(2) that the order be just and equitable. The importance of the court ensuring that an order is just and equitable was confirmed in the 2015 decision of Keehan & Keehan.301 The trial judge at this ‘stage’ of the process made an additional adjustment of 2 per cent in favour of the husband on the basis that when the practical effect of the orders were considered, it was appropriate to give the husband slightly more cash to ensure that he could appropriately house himself (the parents had equal shared care of their two children). The wife appealed the order on the basis that there was no power to make this further adjustment. In rejecting the appeal, Murphy J confirmed that the court’s power is not confined ‘by any “steps” or “stages”, and nor is it exhausted by reason of the consideration of any or all of the so called “steps” and “stages”’.302 Thus the discretion of the court cannot be curtailed provided there is no ‘double counting’ and the order made is just and equitable. Conversely, in Lester & Lester,303 discussed above at 14.64, the Full Court upheld the husband’s appeal on the basis that the trial judge had not made orders which

[page 904] in all the circumstances were just and equitable. The trial judge had failed to stand back and consider the true effects of his orders. According to the majority, ‘not only did his Honour err in relation to the s 75(2) exercise but he failed to consider and make findings which could lead him to be satisfied that the ultimate outcome reflected a proper exercise of his discretion’.304

Forms of order for property adjustment 14.66 The FLA confers wide powers on the court as to the form of order it can make in property division proceedings. Section 79(1)/90SM(1) refer to orders altering interests in property,305 including orders for settlement in substitution for interests306 and orders for transfer.307 In addition, s 80/90SS(1) confer general powers on the court, including the power to order payment of a lump sum308 as well as to make orders for the transfer or settlement of property.309 Consequently, in addition to orders providing for the transfer of particular assets, a party can be ordered to pay a sum of money representing the value, or part of the value, of a particular item of property or a proportion of the asset pool to the other party. Provided there are sufficient vested assets out of which a lump sum order under s 79 can be satisfied, the order does not have to be directed to any particular item of property. In the 1977 case of Duff & Duff,310 the Full Court of the Family Court emphasised the breadth of the court’s powers in making orders for property reallocation.311 Moreover, as explained in Chapter 10, when a lump sum or property adjustment order is made for the purposes of spousal maintenance, s 77A/90SH require that the court must specify the portion of the payment, or the value of the portion of the

property, attributable to the provision of maintenance for the party. This requirement does not apply to the s 75(2)/90SF(3) component of a s 79/90SF order.312 [page 905]

Relationship between spousal maintenance and property adjustment 14.67 Spousal maintenance and property adjustment are closely related; they are two aspects of the single issue of resolving the spouses’ financial affairs upon marriage or relationship breakdown. Assets retained or lost through a property order have an obvious and direct effect on the parties’ respective means and needs, and so must be taken into account in any application for spousal maintenance.313 The factors listed in s 75(2)/90SF(3) play a major role in the determination of entitlement to spousal maintenance; that is the subsections’ ‘primary work’.314 However, s 75(2)/90SF(3) is also ‘picked up as part of the s 79 property exercise via s 79(4)(e)’.315 A long line of authorities has explained the difference between spousal maintenance under ss 72/90SF(1) and 74/90SE on the one hand, and the s 75(2)/90SF(3) factors in a s 79/90SM claim on the other.316 In the pre-Stanford317 era, where the ‘steps’ to property orders were clearly delineated, in Marriage of Clauson318 (see 14.59) the Full Court described the distinction between orders for spousal maintenance and property settlements as follows: Where spousal maintenance is sought in addition to a property order it becomes, in effect, the fourth step in the process. It is only to be exercised after the three step process under s 79 has been completed and it is not to be confused with the s 75(2) component in that latter exercise. The reason why it must be exercised after the s 79 exercise is because that latter exercise establishes the background against which s 74 [being the maintenance power] must operate, that is, the financial circumstances of the parties.

… The distinction between s 74 and the s 75(2) exercise in a property order is important and must be maintained. In the latter context the s 75(2) exercise is not an exercise of the maintenance power. Nor is it a ‘back door’ maintenance order. It requires the court to take into account, so far as relevant, the various matters set out in that sub-section in determining, in effect, what alteration, if any, should be made to the conclusions already reached on the basis of the parties’ contributions to their property.319

[page 906] On the facts of Clauson, the dimensions of the property order made in favour of the wife, including a 25 per cent component for the s 75(2) factors, made it inappropriate to order spousal maintenance. This was in part because the capital sum received by the wife as a result of the property order, when properly invested, would permit the wife to support herself adequately. The approach outlined in Clauson was approved and followed a year later in Marriage of Fickling,320 when the Full Court reemphasised the distinction between the s 75(2) component of a s 79 order and a lump sum order for spousal maintenance.321 More recently in Raine & Creed,322 the Full Court confirmed that the trial judge was obliged to ‘determine the property claim unaided or unhindered by his view as to the determination of the maintenance claim, but then have regard to the outcome in considering the maintenance application’.323 Apart from identifying difficulties with the application of the ‘steps’ to the division of property that are suggested in Clauson, it would seem the High Court decision in Stanford has had little effect on the relationship between property settlement and spousal maintenance.

Conclusion

14.68 The exercise of the discretion when dividing property in the post-Stanford era indicates a number of milestones including: clarification on the distinction between legitimate guidelines and guiding principles; the debunking of the concept of ‘special contributions’; and the adoption of a holistic approach to the division of property that takes account of the entire contribution history of the parties and encourages a partnership approach to marriage or former long-term de facto relationships. It is fair to say that in recent years, parenting law has dominated the family law policy debate. Very few family law cases of any nature reach the High Court, and rarely is s 79 the subject of consideration. However, as the discussion in this chapter highlights, there are some fundamental questions arising through the cases about how the relevant provisions do, and should, operate. It is unfortunate that the High Court in Stanford did not take the opportunity to provide more specific guidance, even if by way of obiter comment, on the correct interpretation of the patently ambiguous terms of s 79. For example, considerable court time (and litigant funds) have been expended discussing the impact of Stanford on the four-step Hickey approach. We have also outlined how it has taken decades [page 907] to resolve the issue of ‘special contributions’, how judicial officers are perplexed by the operation of the Kennon principle, the uncertainty as to which principles qualify as ‘legitimate guidelines’, and the role of s 75(2) where, for example, one party earns more than the other. More generally, we have noted that the Family Court appears to be moving towards a partnership approach, in spite of the clear decision in Mallet that there is no

presumption that ‘equality is equity’. As significant future guidance from the High Court seems unlikely (not least because one cannot expect private litigants to regularly challenge such things and pro bono cases are not common in this area), the time is arguably ripe for some legislative reconsideration of these provisions. For example, and as has happened in some other jurisdictions, it might be appropriate to formalise any legitimate guidelines developed by the court by giving them legislative force. It will be interesting to see if there is anything to report in this regard in the next edition of this book. 1.

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513; Brown v Green [1999] FamCA 1483; Hoffman & Hoffman [2014] FamCAFC 92.

2. 3.

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at [7]. [1936] HCA 40; (1936) 55 CLR 499.

4. 5.

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at [8]. Ibid.

6. 7.

Ibid at [7]. Ibid at [28].

8. 9.

Ibid at [21]ff. [2014] FamCAFC 92.

10. 11.

[2001] HCA 64; (2001) 207 CLR 584. (1978) 6 Fam LR 570; (1979) FLC ¶90-725.

12. 13.

Brown v Green [1999] FamCA 1483; Hoffman & Hoffman [2014] FamCAFC 92; Lovine & Connor [2012] FamCAFC 168. [2014] FamCAFC 92 at [42].

14. 15.

Hoffman & Hoffman [2014] FamCAFC 92 at [44]. [2012] FamCAFC 168 at [103].

16.

Robertson & Robertson [2012] FamCAFC 60 per Finn, Strickland and Ryan JJ. In this case, the federal magistrate failed to make findings as to the respective contributions of the parties and simply identified the relevant sections of the FLA. Dougherty & Dougherty (1987) 163 CLR 278.

17. 18. 19.

Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J. Parties may not only share assets, but may also share liabilities. In Graham & Kovacs (No 4) [2015] FamCA 1073, where the parties’ liabilities exceeded their assets, Tree J made orders that the parties were equally liable for the debt.

20.

See Bolger & Headon [2014] FamCAFC 27; FLC ¶93-575, where the Full Court (Thackray, Murphy and Kent JJ) upheld an appeal on the basis that the trial judge’s reasons were inadequate to explain the result; and most recently Fields & Smith

21. 22. 23.

(2015) 53 Fam LR 1; FLC ¶93-638, where the Full Court came to a similar conclusion. Marriage of Gould (1995) 20 Fam LR 1; (1996) FLC ¶92-657; Tomasetti v Tomasetti (2000) 26 Fam LR 114; FLC ¶93-023. (2013) 49 Fam LR 116; [2013] FamCAFC 15.

24.

[2013] FamCAFC 15 at [49]. See also Bolger & Headon [2014] FamCAFC 27; FLC¶93575 at [28]. Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154.

25. 26.

(2012) FLC ¶93-515; [2012] FamCAFC 168. [2012] FamCAFC 168 at [42].

27. 28.

(2013) 50 Fam LR 489; FLC ¶93-569 at [3]. (2000) 27 Fam LR 316; FLC ¶93-060. See also Powell v Supresencia (2003) 30 Fam LR 463; DFC ¶95-275.

29. 30.

(2000) 27 Fam LR 316 at 327; FLC ¶93-060 at [56], [57]. Ibid at 328–9; [65], [66].

31. 32.

Ibid at 362; [195]. P Parkinson, ‘Judicial Discretion, the Homemaker Contribution and Assets Acquired After Separation’ (2001) 15 Australian Journal of Family Law 155; A Dickey, ‘Property Division and Disparity of Income and Capital’ (2002) 76 Australian Law Journal 223; A Dickey, ‘Financial Relief and Nexus with Marriage’ (2002) 76 Australian Law Journal 287.

33. 34.

[2010] FamCAFC 228. Ibid at [117].

35. 36.

Ibid at [117]–[119]. (2014) 51 Fam LR 540; FLC ¶93-576 at [60].

37. 38.

See also Singerson & Joans [2014] FamCAFC 238. Marsh & Marsh (2014) 51 Fam LR 540; FLC ¶93-576 at [104] per Murphy J.

39.

(2000) 27 Fam LR 316; FLC ¶93-060. See also Powell v Supresencia (2003) 30 Fam LR 463; DFC ¶95-275. (1976) 1 Fam LR 11,581; FLC ¶90-076.

40. 41. 42.

For a discussion of the question of over-captilisation, see A Dickey, ‘Family Law’ (1988) 62 Australian Law Journal 82 at 83. Jackson & Jackson (1988) FLC ¶91-904; Bushby & Bushby (1988) FLC ¶91-919; Tozer & Tozer (1989) 13 Fam LR 531.

43. 44.

That Act inserted, among other things, Pt VIIIB into the FLA. See, for example, Marriage of Crapp (No 2) (1979) 5 Fam LR 47; FLC ¶90-615; Bailey & Bailey (1978) FLC ¶90-424; Coulter & Coulter (1990) 13 Fam LR 421; FLC ¶92-104.

45. 46.

(1976) 2 Fam LR 11,214; FLC ¶90-089. (1992) FLC ¶92-304.

47.

Napthali & Napthali (1988) 13 Fam LR 146; (1989) FLC ¶92-021; Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC ¶92-108. For a discussion of indirect

48. 49. 50.

contributions to property, see A Dickey, ‘Family Law’ (1989) 63 Australian Law Journal 761. (1995) FLC ¶92-609. See, more recently, Danford & Danford [2011] FamCAFC 54. [2013] FamCA 988.

51.

(1978) 5 Fam LR 889; FLC ¶90-466. See also Miller v Miller; McFarlane v McFarlane [2006] 2 AC 618; 3 All ER 1. Wardman & Hudson (1978) 5 Fam LR 889; FLC ¶90-466 at 77,385.

52. 53.

AB v ZB (2002) 30 Fam LR 591; (2003) FLC ¶93-140. See Sane Daramy & Gueye Sane [2015] FamCA 180.

54. 55.

Mahon & Mahon (1982) FLC ¶91-242. A Dickey, ‘Family Law’ (1995) 69 Australian Law Journal 692 at 693.

56. 57.

(1992) 16 Fam LR 203; FLC ¶92-344. (1992) 16 Fam LR 203 at 206–8. See also Townsend & Townsend (1994) 18 Fam LR 505; (1995) FLC ¶92-569.

58. 59.

(2015) 53 Fam LR 1; FLC ¶93-638. (2015) FLC ¶93-638 at [97].

60. 61.

[2015] FamCAFC 160. Ibid at [15].

62.

The orders themselves required amendment as they did not reflect the trial judge’s intention. Norbis v Norbis (1986) 161 CLR 513; McMahon & McMahon (1995) 19 Fam LR 99; FLC ¶92-606.

63. 64. 65.

In the Matter of McLay (1996) 20 Fam LR 239; FLC ¶92-667. (1986) 161 CLR 513 at 523, 541.

66. 67.

Ibid at 523, 533, 541. Lenehan & Lenehan (1987) 11 Fam LR 615; FLC ¶91-814; McMahon & McMahon (1995) 19 Fam LR 99; FLC ¶92-606.

68. 69.

Norbis v Norbis (1986) 161 CLR 513 at 533. [2013] FamCAFC 16.

70. 71.

Greer & Mackintosh [2013] FamCAFC 16 at [33]–[37]. (2012) 247 CLR 108; FLC ¶93-518.

72. 73.

(2005) 33 Fam LR 414; FLC ¶93-220 at [43]. (2005) FLC ¶93-220 at [63], [64].

74. 75.

(1984) 156 CLR 605. Potthoff & Potthoff (1978) 4 Fam LR 267; FLC ¶90-475; Wardman & Hudson (1978) 5 Fam LR 889; FLC ¶90-466; Marriage of Rolfe (1977) 5 Fam LR 146; (1979) FLC ¶90629.

76. 77.

See, for example, Hirst & Rosen (1982) 8 Fam LR 251; FLC ¶91-230. Aroney & Aroney (1979) 5 Fam LR 535; FLC ¶90-709; W & W (1980) 6 Fam LR 538; FLC ¶90-872; Kelly & Kelly (No 2) (1981) 7 Fam LR 762; FLC ¶91-108.

78.

Although these were technically separate judgments, Deane J agreed essentially with the reasons and conclusion expressed by Mason J that there was no such principle or presumption. Deane J noted that, while the circumstances of a particular case may lead to a conclusion as a matter of fact that equality is an appropriate starting point, there can be no general rule or presumption in favour of equality.

79.

80.

Mallet’s case is discussed in detail in Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, [68]–[73]. ALRC reports may be accessed via the ALRC website: www.alrc.gov.au (accessed 29 November 2015). See also P Nygh, ‘Sexual Discrimination and the Family Court’ (1985) 8 University of New South Wales Law Journal 62 at 72–4; R Bailey-Harris, ‘Property Distribution on Separation’ (1985) 8 University of New South Wales Law Journal 1. Mallet & Mallet (1984) 156 CLR 605.

81. 82.

Ibid at 625 per Mason J; at 649 per Dawson J. (1977) 5 Fam LR 146; (1979) FLC ¶90-629.

83.

Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, [73]. See, for example, Lawler & Lawler (1988) 12 Fam LR 319; FLC ¶91-927; Aldred & Aldred (1988) FLC ¶91-933; Gamer & Gamer (1988) FLC ¶91-932.

84. 85.

86.

See, for example, H Charlesworth and R Ingleby, ‘The Sexual Division of Labour and Family Property Law’ (1988) 6 Law in Context 29; H Charlesworth, ‘Domestic Contributions to Matrimonial Property’ (1989) 3 Australian Journal of Family Law 147; R Bailey-Harris, ‘Property Disputes between De Facto Couples: Is Statute the Best Solution?’ (1991) 5 Australian Journal of Family Law 221 at 234; M Neave, ‘From Difference to Sameness: Law and Women’s Work’ (1992) 18 Melbourne University Law Review 768. See, for example, Marriage of Dawes (1989) 13 Fam LR 599; (1990) FLC ¶92-108; Marriage of Lalor (1989) 14 Fam LR 282; (1989) FLC ¶92-164; Marriage of Georgeson (1995) 19 Fam LR 302; FLC ¶92-618; Harrison & Harrison (1996) 20 Fam LR 322; FLC ¶92-682.

87. 88.

(1989) 13 Fam LR 599; (1990) FLC ¶92-108. (1991) 15 Fam LR 26; FLC ¶92-254.

89. 90.

(1992) 16 Fam LR 1; (1993) FLC ¶92-335. (1992) 16 Fam LR 1 at 38, 47.

91.

92.

R Chisholm (ed), Butterworths Australian Family Law Bulletin, No 106, January 1993, p 17. For an excellent critique of Ferraro, see Lisa Young, ‘Sissinghurst, SackvilleWest and “Special Skill”’ (1997) 11 Australian Journal of Family Law 268. (1993) 16 Fam LR 937; FLC ¶92-418.

93. 94.

(1994) 18 Fam LR 149; FLC ¶92-495. (1995) 19 Fam LR 302; FLC ¶92-618.

95. 96.

(1995) 18 Fam LR 693; FLC ¶92-595. (1995) 20 Fam LR 1; (1996) FLC ¶92-657.

97.

JEL v DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075.

98.

Kennon v Kennon (1997) 22 Fam LR 1; FLC ¶92-757.

99. Mallet & Mallet (1984) 156 CLR 605. 100. Ibid at 636 per Wilson J; 647 per Dawson J; 608–10 per Gibbs CJ; 625 per Mason J. 101. See, for example, Ferraro & Ferraro (1992) 16 Fam LR 1; (1993) FLC ¶92-335; McLay & McLay (1996) 20 Fam LR 239; FLC ¶92-667. In Stay & Stay (1997) 21 Fam LR 626; FLC ¶92-751, the Full Court suggested that contributions are most likely to be unequal where the assets are in the high range. This was rejected in JEL v DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075. 102. (1992) FLC ¶92-304. 103. Ibid at 79,299. 104. Ferraro & Ferraro (1992) 16 Fam LR 1; (1993) FLC ¶92-335 at 79,572. See also Brown & Brown (2005) 33 Fam LR 246 at 257, referring to Ferraro. 105. (1992) 16 Fam LR 1; (1993) FLC ¶92-335 at 79,581. 106. (2000) 28 Fam LR 1; (2001) FLC ¶93-075. 107. (1996) 20 Fam LR 239; FLC ¶92-667. 108. (2000) 28 Fam LR 1 at 29 (these comments were made by Moore J, the trial judge in McLay). 109. Ibid at 30–1. 110. Ibid at 34–5. 111. (2014) 51 Fam LR 568; FLC ¶93-591. 112. (2002) 29 Fam LR 544; FLC ¶93-122. 113. Ibid, 29 Fam LR 544 at 550. 114. Ibid at 556–7 per Nicholson CJ and Buckley JJ; at 572 per Ellis J. 115. Ibid at 557. 116. Anthony Dickey, ‘Family Law: “Special Contribution” to Property and the Case of Figgins’ (2003) 77 Australian Law Journal 575 at 576. 117. (2005) 32 Fam LR 552; FLC ¶93-209. 118. (2005) 32 Fam LR 552 at 569. 119. See SL & ELH [2005] FamCA 132 (Warnick J); Bulleen & Bulleen (2010) 43 Fam LR 489; [2010] FamCA 187 (Cronin J); Smith & Fields [2012] FamCA 510 (Murphy J). See also Richard Ingleby, ‘Hans Christian Anderson, Bulleen and the Emperor’s New Clothes’ (2010) 24 Australian Journal of Family Law 272. 120. Kane & Kane (2013) 50 Fam LR 489; FLC ¶93-569. 121. Kane & Kane [2011] FamCA 480 at [101]. 122. Ibid at [137]. 123. Kane & Kane (2013) 50 Fam LR 489; FLC ¶93-569 at [110]. 124. (2013) FLC ¶93-569 at [17]. 125. Ibid at [20] per Faulks DCJ; at [105] per May and Johnson JJ. 126. Ibid at [109]. 127. Ibid at [7].

128. For further discussion of this decision, see Michael Brown, ‘Blame it on Kane?’(2014) 1 Australian Family Lawyer 26; Michelle Fernando, ‘Case Note: Kane v Kane’ (2014) 4 Family Law Review 52. 129. (2014) 51 Fam LR 568; FLC ¶93-591 at [61]. 130. (2014) FLC ¶93-591 at [62]. 131. [2005] FamCA 1462 at [271]. 132. Hoffman & Hoffman (2014) 51 Fam LR 568; FLC ¶93-591 at [61]. 133. Mallet & Mallet (1984) 156 CLR 605. 134. Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC ¶92-335. 135. JEL v DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075. 136. (2015) 53 Fam LR 1; FLC ¶93-638. 137. Smith & Fields [2012] FamCA 510 at [48]. 138. Fields & Smith (2015) 53 Fam LR 1; FLC ¶93-638 at [93], [96] per Bryant CJ and Ainslie-Wallace J; at [202] per May J. 139. (2015) FLC ¶93-638 at [119]. 140. Ibid at [43]. 141. Ibid at [134]. 142. Trask & Westlake [2015] FamCAFC 160. 143. For further discussion, see Anna Parker, ‘Not So Special: Fields and Smith and the Assessment of Contributions in Family Law Property Matters’ (2015) 5 Family Law Review 112; Michelle Fernando, ‘Case Note: Fields v Smith’ (2015) 5 Family Law Review 123. 144. Mallet & Mallet (1984) 156 CLR 605. 145. On the role of fault in judicial decision–making, see Helen Rhoades, ‘Equality, Needs and Bad Behaviour: The “Other” Decision-making Approaches in Australian Matrimonial Property Cases’ (2005) 19 International Journal of Law, Policy and the Family 194. 146. Soblusky & Soblusky (1976) FLC ¶90-124. Soblusky dealt with spousal maintenance, but the Full Court subsequently held that the Soblusky approach applied equally in applications for property division: see Marriage of Ferguson (1978) 4 Fam LR 312; FLC ¶90-500. 147. Polonius & York [2010] FamCAFC 228 at [89]. 148. Stanford v Stanford (2012) 247 CLR 108; FLC ¶93-518. 149. Kennon & Kennon (1997) 22 Fam LR 1; FLC ¶92-757. 150. Ibid. 151. (1997) 22 Fam LR 1; FLC ¶92-757 at 84,290. See also Polonius & York [2010] FamCAFC 228 at [86]. 152. (2005) 32 Fam LR 552; FLC ¶93-209. The husband also unsuccessfully attempted to argue that the wife’s conduct should be taken into account under s 75(2)(o). 153. (2005) FLC ¶93-209 at [74]. 154. Antmann & Antmann (1980) 6 Fam LR 560; FLC ¶90-908.

155. (1981) FLC ¶91-092. 156. Ibid. See also Mead & Mead (1983) 9 Fam LR 193; FLC ¶91-354. 157. (1981) FLC ¶91-092 at 76,646. 158. Ibid at 76,644. 159. (1999) 25 Fam LR 482; FLC ¶92-873. 160. (1999) 25 Fam LR 482 at 495–6. 161. Ibid at 500. 162. See Spiteri & Spiteri (2005) 33 Fam LR 109; FLC ¶93-214, where the wife’s wastage of assets was taken into account in weighing up contributions. However, see also Davalas & Davalas [2015] FamCA 679, where Johnston J refused to regard the husband’s ‘frivolous’ spending on sailing and yacht racing as falling within the Kowaliw guidelines. 163. See De Angelis & De Angelis (2003) FLC ¶93-133; Mead & Mead (1983) FLC ¶91-354. 164. See, for example, C & C [2006] FamCA 528. 165. See Barkley & Barkley (1976) 1 Fam LR 11,554; Hack & Hack (1977) 6 Fam LR 425. 166. Rogers & Rogers (1980) FLC ¶90-874. 167. K Murray, ‘Domestic Violence and the Judicial Process’ (1995) 9 Australian Journal of Family Law 26 at 31. 168. A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 2. 169. J Behrens, ‘Domestic Violence and Property Adjustment: A Critique of No-Fault Discourse’ (1993) 7 Australian Journal of Family Law 9 at 13. 170. Ibid at 9. 171. Ibid at 22–4. 172. See Australian Law Reform Commission (ALRC), Report No 67, Interim: Equality Before the Law: Women’s Access to the Legal System, AGPS, Canberra, 1994, Ch 3; ALRC, Report No 69, Part II: Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, especially Chs 2 and 3. ALRC reports may be accessed via the ALRC website: www.alrc.gov.au (accessed 10 December 2015). See also R Graycar, ‘The Relevance of Violence in Family Law Decision Making’ (1995) 9 Australian Journal of Family Law 58; Juliet Behrens, ‘Violence in the Home and Family Law: An Update’ (1995) 9 Australian Journal of Family Law 70. 173. See, for example, K Murray, ‘Domestic Violence and the Judicial Process’ (1995) 9 Australian Journal of Family Law 26 at 34. 174. Ibid at 35–6. 175. A Nicholson, ‘Foreword’ (1995) 9 Australian Journal of Family Law 1 at 3. 176. Australian Law Reform Commission (ALRC), Report No 69, Part I: Equality Before the Law: Justice For Women, AGPS, Canberra, 1994, Recommendation 9.6, available on the ALRC website: www.alrc.gov.au (accessed 10 December 2015). 177. (1995) 20 Fam LR 137; (1996) FLC ¶92-652. 178. (1995) 20 Fam LR 137 at 141. 179. (1997) 22 Fam LR 1; FLC ¶92-757.

180. (1997) 22 Fam LR 1 at 2. 181. Ibid at 19 (the parties commenced cohabitation in April 1989, married in September 1991 and separated in March 1994; there were no children of the marriage, although the husband had contact with his four children of previous marriages during their cohabitation). 182. Ibid at 23–4 (their Honours also saw this approach as preferable to the thenavailable cross-vested common law claim for damages). See also at 66–7 per Baker J. 183. Ibid. 184. Ibid at 24. In AP v ENP (P & P) (2003) FLC ¶93-161, Walters FM held that one party’s problems with alcohol had a ‘discernable impact upon the contributions of the other party’ (at 78,633). His Honour also found that ‘having regard to the amount of money spent by the husband on alcohol, I find that the husband’s behaviour had an adverse economic impact on the welfare of this small family’ (at 78,633). See also Shaw & Shaw [2009] FMCAfam 9. 185. Polonius v York [2010] FamCAFC 228 at [86] per Boland, Thackray and O’Ryan JJ. 186. Whelan & Whelan [2010] FamCA 530 at [155]–[177] per Watts J. 187. See Sarah Middleton, ‘Domestic Violence and Contributions to the Welfare of the Family: Why Not Negative?’ (2002) 16 Australian Journal of Family Law 26. 188. For details regarding the criticisms of Kennon, see Patricia Easteal, Catherine Warden and Lisa Young, ‘The Kennon “Factor”: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1; Belinda Fehlberg et al, Australian Family Law: The Contemporary Context, 2nd ed, Oxford University Press, South Melbourne, 2015, pp 586–7. 189. (2010) 244 FLR 121; [2010] FMCAfam 999 at [73]–[95] per Brewster FM. For a discussion, see O Rundle, ‘Case Note: Palmer and Palmer’ (2011) 1 Family Law Review 170. 190. [2010] FMCAfam 999 at [95]. Brewster FM also expressed the view that Kennon was not binding and lacks jurisprudential basis. 191. [2012] FamCAFC 18. 192. Ibid at [257]. 193. [2015] FamCAFC 178 [103]. 194. Ibid at [103]. 195. See Sarah Middleton, ‘Domestic Violence Contributions and s 75(2) Considerations: An Analysis of Unreported Property Judgments’ (2001) 15 Australian Journal of Family Law 230. 196. Patricia Easteal, Catherine Warden and Lisa Young, ‘The Kennon “Factor”: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1. 197. Grania Sheehan and Jody Hughes, ‘Division of Matrimonial Property in Australia’, Research Paper 25, Australian Institute of Family Studies; Grania Sheehan and Bruce Smyth, ‘Spousal Violence and Post-separation Financial Outcomes’ (2000) 14 Australian Journal of Family Law 102. See also Lixia Qu et al, Post Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, p 106.

198. Patricia Easteal, Catherine Warden and Lisa Young, ‘The Kennon “Factor”: Issues of Indeterminacy and Floodgates’ (2014) 28 Australian Journal of Family Law 1 at 25–8. 199. (1993) 17 Fam LR 289; (1994) FLC ¶92-443. 200. (1994) 18 Fam LR 442; (1995) FLC ¶92-565. 201. (1993) 17 Fam LR 299; (1994) FLC ¶92-442. 202. (1993) 17 Fam LR 299 at 317 per Coleman J. 203. (1978) 4 Fam LR 360; FLC ¶90-499. 204. Nemeth & Nemeth (1987) FLC ¶91-844; Beneke & Beneke (1996) 20 Fam LR 841; FLC ¶92-698; Hamilton & Thomas [2008] FamCAFC 8. 205. Lawler & Lawler (1988) 12 Fam LR 319; FLC ¶91-927; Marriage of Harris (1991) 15 Fam LR 26; FLC ¶92-254; Money & Money (1994) 17 Fam LR 814; FLC ¶92-485; see particularly the decision of Fogarty J in Money, which was approved by the Full Court in Bremner & Bremner (1994) 18 Fam LR 407; (1995) FLC ¶92-560. 206. (1998) 24 Fam LR 377; (1999) FLC ¶92-844. 207. (1998) 24 Fam LR 377 at 386–7. 208. (2005) 33 Fam LR 246 at 258. See also Spiteri & Spiteri (2005) 33 Fam LR 109; FLC ¶93-214. 209. (2005) 33 Fam LR 246 at 259. 210. [2007] FamCA 313 at [26]. 211. For a recent example, see Macris & Galanis [2015] FamCAFC 234. 212. [2014] FamCA 1106 at [252]. 213. See also Bulleen & Bulleen (2010) 43 Fam LR 489, where Cronin J acknowledged that it was impossible to identify the initial contributions, but nevertheless in a net asset pool of $151 million made a 6.6 per cent adjustment for initial contributions. See also Cabbell & Cabbell [2009] FamCAFC 205. 214. Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154. 215. Linch & Linch [2014] FamCACF 69. 216. (1989) 14 Fam LR 282; (1989) FLC ¶92-164. 217. (1992) 16 Fam LR 1; (1993) FLC ¶92-335. 218. (1995) 20 Fam LR 1; (1996) FLC ¶92-657. 219. (2000) 27 Fam LR 316; FLC ¶93-060. 220. (1989) FLC ¶92-003. 221. See Wall & Wall (2002) FLC ¶93-110: where the husband received a significant inheritance long after separation, the inheritance was taken into account for the purposes of s 75(2) factors, but the court held the wife had made no contribution to the inheritance. 222. (2014) 51 Fam LR 540; FLC ¶93-576. 223. (2000) 27 Fam LR 316; FLC ¶93-060. 224. (2014) 51 Fam LR 540; FLC ¶93-576 at [60]. 225. (2014) FLC ¶93-576 at [67]. 226. Ibid at [66].

227. Ibid at [104]. 228. (2015) 53 Fam LR 1; FLC ¶93-638 at [100]. 229. (2015) FLC ¶93-638 at [100]. 230. Ibid. 231. Ibid at [103]. 232. [2015] FamCAFC 160. 233. Gosper & Gosper (1987) 11 Fam LR 601; FLC ¶91-818. 234. (1994) 18 Fam LR 149; FLC ¶92-495. 235. (1994) FLC ¶92-495 at 81,150. 236. Anthony Dickey, Family Law, 6th ed, Thompson Reuters, Pyrmont, 2014, p 608. 237. (1997) 22 Fam LR 474; FLC ¶92-789 at 84, 726–8. 238. See also Bagby & Bagby [2015] FamCAFC 209, where gifts of property were regarded as gifts to both parties. 239. (1991) 15 Fam LR 138; FLC ¶92-272. 240. (1991) FLC ¶92-272 at 79,020. 241. (2002) 29 Fam LR 544; (2002) FLC ¶93-122. 242. [2001] 1 AC 596. 243. (2002) 29 Fam LR 544; (2002) FLC ¶93-122 at 89, 295–6. 244. [2013] FamCAFC 138; (2013) FLC ¶93-553. 245. (2013) FLC ¶93-553 at [28]. 246. [2014] FamCAFC 238. 247. (2000) 27 Fam LR 316; FLC ¶93-060. 248. Singerson & Joans [2014] FamCAFC 238 at [66]. 249. Zyk & Zyk (1995) 19 Fam LR 797; FLC ¶92-644. 250. Brease v Brease (1997) 22 Fam LR 518; (1998) FLC ¶92-793. 251. Farmer & Bramley (2000) 27 Fam LR 316; FLC ¶93-060. 252. [2014] FamCAFC 191. 253. Ibid at [11]. 254. (2000) 27 Fam LR 316; FLC ¶93-060. See also Singerson & Joans [2014] FamCAFC 238. 255. Williams & Williams (1984) FLC ¶91-541 affirmed by the High Court in Williams & Williams (1985) FLC ¶91-628. See also Aleksovski & Aleksovski (1996) 20 Fam LR 894; (1996) FLC ¶92-705. 256. (1995) FLC ¶92-609. 257. [2011] FamCAFC 54. 258. Hickey & Hickey (2003) 30 Fam LR 355 at 370; FLC ¶93-143 per Nicholson CJ, Ellis and O’Ryan JJ. 259. (1985) 10 Fam LR 431; FLC ¶91-626. 260. (1985) 10 Fam LR 431 at 446.

261. Ibid at 440–1. 262. Ibid at 441–2. 263. See Patrick Parkinson, ‘Applying the s 75(2) Factors to the Division of Family Property: A Principled Approach’ (2014) 4 Family Law Review 77 for a discussion of the constitutional context of the s 75(2) factors. 264. Branicki & Branicki [1990] FamCA 61. 265. (1990) FLC ¶92-149. 266. Sindel & Milton [2010] FamCAFC 232 at [51] per Bryant CJ, Strickland and Murphy JJ. 267. See JEL & DDF (2000) 28 Fam LR 1; (2001) FLC ¶93-075; Fields & Smith (2015) Fam LR 1; FLC ¶93-638. 268. Marriage of Clauson (1995) 18 Fam LR 693; FLC ¶92-595. 269. (1995) FLC ¶92-595 at 81,911. 270. [2014] FamCAFC 209. 271. See, for example, Penza & Penza (1988) FLC ¶91-949; Lawler & Lawler (1988) 12 Fam LR 319; FLC ¶91-927; Abdo & Abdo (1989) 12 Fam LR 861; FLC ¶92-013; Shaw & Shaw (1989) 12 Fam LR 806; FLC ¶92-010; Marriage of Lalor (1989) 14 Fam LR 282; (1990) FLC ¶92-164; Goodwin & Goodwin (1990) 14 Fam LR 801; (1991) FLC ¶92197. 272. See Adiva Sifris, ‘Lump Sum Spousal Maintenance: Crossing the Rubicon’ (2000) 14 Australian Journal of Family Law 1. 273. See, for example, DJM v JLM (1998) 23 Fam LR 396; FLC ¶92-816, where after finding that the parties had contributed equally, the court thereafter made a further future needs adjustment of 30 per cent in favour of the wife, giving the wife 80 per cent of the asset pool. 274. See, for example, K Funder, M Harrison and R Weston, Settling Down: Pathways of Parents After Divorce, Australian Institute of Family Studies, Melbourne, 1993; Juliet Behrens and Bruce Smyth, Spousal Support in Australia: A Study of the Incidence and Attitudes, Working Paper 16, Australian Institute of Family Studies, Melbourne, 1999. 275. (1995) 20 Fam LR 190; FLC ¶92-635. 276. (1995) 20 Fam LR 190 at 196. 277. (1995) 18 Fam LR 693; FLC ¶92-595. 278. (1995) 18 Fam LR 693 at 709–10. 279. See also Guthrie & Guthrie (1995) 19 Fam LR 781, where the wife had care of three young children and her health was poorer than that of her husband. An appeal against an assessment of the s 75(2) factors resulted in an increase from 10 per cent to 20 per cent. 280. (1995) 20 Fam LR 190; FLC ¶92-635. 281. (1995) 20 Fam LR 190 at 199–200. 282. Belinda Fehlberg et al, Australian Family Law: The Contemporary Context, 2nd ed, Oxford University Press, Melbourne, 2015, p 530, referring to Rae Kaspiew et al,

Evaluation of the 2006 Family Law Reforms, AIFS, Melbourne 2009, p 225. 283. See Marsh & Marsh (2014) 51 Fam LR 540; FLC ¶93-576 at [161]–[171] per Le Poer Trench J. 284. Waters & Jurek (1995) 20 Fam LR 190 at 196 per Fogarty J. See also Marriage of Clauson (1995) 18 Fam LR 693 at 711 per Barblett DCJ, Fogarty and Mushin JJ; Mallet v Mallet (1984) 156 CLR 605 at 638 per Wilson J. 285. See Kavanagh v Metzger [2010] FamCAFC 201, where the Full Court stated that the court should not engage in social engineering. See also Marsh & Marsh (2014) 51 Fam LR 540; FLC ¶93-576, where the Full Court rejected the notion that s 75(2) factors can be used to redress a disparity in the parties’ asset position at the end of the contribution stage. 286. (2014) 51 Fam LR 540; FLC ¶93-576. 287. (2014) FLC ¶93-576 at [75]. 288. [2015] FamCA 833. 289. (1999) 24 Fam LR 460; FLC ¶92-843. 290. (1999) 24 Fam LR 460 at 472. 291. Ibid at 473–4. 292. FLA s 65D (subject to s 65DAA). 293. FLA s 66G (subject to s 66E). 294. FLA ss 66G, 66L. 295. FLA s 74. 296. (1995) 18 Fam LR 693; FLC ¶92-595. 297. (1995) 18 Fam LR 693 at 710. 298. [2014] FamCAFC 209. 299. Ibid at [80]. 300. Bevan & Bevan (No 1) (2013) 49 FLR 387; FLC ¶93-545 at [86]. 301. [2015] FamCAFC 122. 302. Ibid at [118]. 303. [2014] FamCAFC 209. 304. Ibid at [83]. 305. FLA s 79(1)(a)/90SM(10)(a). See also ss 79(1)(b)/90SM(1)(b) in relation to an order ‘in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage — altering the interests of the bankruptcy trustee in the vested bankruptcy property’ (added by the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) Sch 1 s 27). 306. FLA s 79(1)(c)/90SM(10(c). 307. FLA s 79(1)(d)/90SM(1)(d). 308. FLA s 80(1)(a)/90SS(1)(a). 309. FLA s 80(1)(ba)/90SS(1)(c). 310. (1977) 3 Fam LR 11,211; FLC ¶90-217.

311. (1977) 3 Fam LR 11,211 at 11,217. 312. Dein & Dein (1989) 12 Fam LR 853; FLC ¶92-014; Lawler & Lawler (1988) 12 Fam LR 319; FLC ¶91-927. 313. Bevan & Bevan (1993) 19 Fam LR 35; (1995) FLC ¶92-600. 314. Waters & Jurek (1995) 20 Fam LR 190 at 195 per Fogarty J. 315. Ibid. 316. See Dench & Dench (1978) 6 Fam LR 105; FLC ¶90-469; Taylor v Taylor (1979) 5 Fam LR 289 at 296; W & W (1980) 6 Fam LR 538 at 546; Crawford & Crawford (1979) 5 Fam LR 106 at 112; Anast & Anastopoulos (1981) 7 Fam LR 728 at 734; Marriage of Collins (1990) 14 Fam LR 563 at 564; Little & Little (1990) 14 Fam LR 118; FLC ¶92147. 317. Stanford v Stanford (2012) 247 CLR 108; FLC ¶93-518. 318. (1995) 18 Fam LR 693; FLC ¶92-595. 319. (1995) 18 Fam LR 693 at 705–6. 320. (1996) 20 Fam LR 258; FLC ¶92-664. 321. (1996) 20 Fam LR 258 at 262. 322. [2015] FamCAFC 133. 323. Ibid at [121].

[page 908]

15 PROPERTY PROCEEDINGS: SPECIFIC ISSUES ___________________________

Introduction 15.1 This chapter deals with some specific issues arising from property distribution on the breakdown of marriages and de facto relationships. It considers the splitting of superannuation entitlements; the use of injunctions; orders and injunctions against third parties; the setting aside of transactions; consent orders and financial agreements; bankruptcy; and the variation or setting aside of property orders.

Superannuation 15.2 The object of superannuation is to provide financially for members of the community following retirement. It is a form of compulsory saving promoted by the Federal Government to avoid reliance on the Age Pension. On relationship or marriage breakdown, the loss of prospective benefits following retirement from a former spouse’s superannuation scheme can impact with particular severity on parties who have not themselves been

members of a scheme, or have been out of the workforce and have therefore not been accruing superannuation benefits for a substantial period of time. Over two decades ago the Australian Law Reform Commission (ALRC) pointed out the particular impact of this on women: The issue of retirement income is particularly important for women. On average, women live longer than men and therefore are more likely to spend more of their last years alone … Current government policies are aimed at retirement income being provided by superannuation funded by the employer or the employee or a combination of both, rather than by the government through Age Pensions … The problem for women is that the superannuation system is geared to the typical working pattern of a man not a woman. The greatest benefit is derived by those who work full-time and continuously over an extended number of years. This is not a typical working pattern for women.1

[page 909] Data compiled during 2013–14 and based on the Australian Bureau of Statistics Survey of Income and Housing indicates that men continue to have more money invested in superannuation funds than women: The average superannuation account balance for men was $98,535 as against $54,916 for women. The average superannuation account balance at retirement was $292,500 for men compared with $138,500 for women.2 For many couples, superannuation is viewed as future savings. When a de facto relationship or marriage breaks down, the spouse who is not a member of a superannuation fund (the ‘non-member spouse’) may lose the prospect of sharing in the future financial security that had not only been planned for, but also acted upon for the parties’ mutual benefit. Moreover, it can often be argued that the non-member spouse contributed indirectly to the member spouse’s superannuation by foregoing the increased

standard of living that would have been more immediately available had superannuation contributions not been made. As superannuation entitlements often represent an asset built up jointly for the parties’ mutual benefit, a claim by the non-member spouse to some share in the superannuation benefits of the other on marriage or relationship breakdown may be justified on the basis both of prospective factors and contributions. Empirical data collected during the late 1990s indicated that, on average, superannuation accounted for about 25 per cent of divorcing or separating couples’ assets.3 Recent data collected by the Australian Institute of Family Studies indicates that this percentage has increased marginally. After the family home (62 per cent) and savings (33 per cent), the superannuation entitlements of each party (husband 30 per cent; wife 27 per cent) represent the most valuable asset that couples possess.4 15.3 At the end of 2002, family law as it applied to superannuation changed radically. The Family Law Legislation Amendment (Superannuation) Act 2001 (Cth)5 inserted, among other things, a new Pt VIIIB into the Family Law Act 1975 (Cth) (FLA), allowing superannuation to be treated as matrimonial property and divided between the parties to a marriage. Since 1 March 2009, [page 910] Pt VIIIB has (except in Western Australia) also applied to de facto couples.6 Part VIIIB allows the splitting and flagging of superannuation payments by court order or financial agreement: see 15.8. To gain an appreciation of the importance of these changes, it is first necessary to consider the situation that existed prior to the change in the law.

Superannuation before the 2002 amendments

15.4 The problems encountered by the Family Court prior to the introduction of Pt VIIIB in dealing with superannuation entitlements stemmed from the nature of superannuation schemes themselves. The historical superannuation model is the discretionary trust. The problems that arose from superannuation were twofold. First, if a marriage broke down and the member spouse was not at retirement age (ie that party’s superannuation interest had not yet vested), he or she had, at that point in time, no existing proprietary interest in the future superannuation entitlements; the member spouse merely had an expectation. In other words, the moneys held in the superannuation fund were not technically owned by the member spouse and they could not generally be accessed. Yet in the future this could crystallise into a very valuable asset. Second, there was no legislative method for valuing the future benefit provided by superannuation. How then was the very real value of this future benefit to be taken into account in property division, given that an order could not operate directly upon the benefit and the value of the superannuation could not be properly determined? The Family Court developed a number of approaches for dealing with superannuation. One approach was sometimes referred to as ‘offsetting’. By relying on s 75(2)(b) of the FLA, the court could take future superannuation entitlements into account as a ‘financial resource’. This could then have the effect of increasing the award of actual property given to the other spouse, in order to allow for disparity in the parties’ post-separation financial position (given the s 75(2) factors).7 This approach could operate unfairly on the member spouse as they would end up with the superannuation, but with very little in the way of immediately accessible assets. Alternatively, where superannuation interests were substantial, there could still be insufficient non-superannuation assets to [page 911]

satisfy the other party’s claim. The court experienced considerable difficulty in identifying precisely how the superannuation entitlements were to be taken into account by this method and, in particular, how the value of the entitlement was to be calculated at the time of final hearing A number of complex formulas were developed by the courts, but unfortunately there was no real consistency of approach.8 Section 79(5)–(7)/90SM(5)–(7) allowed (and continue to allow) the court to adjourn part of the property proceedings if a party’s financial circumstances are likely to change significantly in the future (eg by benefiting from a superannuation payout). The court could make orders in relation to superannuation that would only take effect once the superannuation had vested.9 The Full Court made clear in Hickey & Hickey10 that the 2002 amendments supplemented, rather than diminished, the powers of the court in dealing with superannuation, and so each of these approaches is still available to a decision maker.

Background information on superannuation 15.5 Unless a person can show that they fall within a narrow range of grounds, which include ‘severe financial hardship’, superannuation interests are only accessible when a condition of release is met.11 A ‘condition of release’ generally means that the member of the fund reaches ‘preservation age’ and has retired. Depending on when the member was born, this may range from age 55 to 60.12 Other conditions of release include transitioning to retirement or attaining the age of 65 or more, a terminal medical condition, or permanent incapacity.13 If a condition of release has not been met, the fund is said to be in a growth phase.14 If a condition of release has been met, then the fund is said to be in the payment phase.15 Depending on the rules of the fund, a member may be paid a lump sum, a pension or a combination of the two.

[page 912] There are a number of kinds of superannuation interests. Definitions of the various types of funds are set out in the Family Law (Superannuation) Regulations 2001 (Cth) reg 3. For example, couples may establish a self-managed superannuation fund (SMSF). Funds of this type are heavily regulated. However, the majority of superannuation interests are in accumulation funds. If a party is a member of an accumulation fund, the employer (and employee) will contribute a percentage of the employee’s (the member’s) salary on behalf of the member into the superannuation fund. The fund invests these contributions and thus the benefits relate directly to the amounts contributed and the earnings on the investments. On relationship breakdown, the value of the interest is easily ascertainable according to how the fund has performed. The superannuation statement that the member receives is a fairly accurate indication of what the interest is worth. Another type of interest is a defined benefit interest, which is more problematic. The value of the interest will be determined through a formula set out in the trust deed. This formula usually takes into account the member’s length of service and final average salary. On reaching the payment phase, the member will be entitled to a payment which may be a lump sum payment, a pension entitlement or both. The value of the interest may be much larger than that reflected on the superannuation statement and it cannot be accurately ascertained until the member retires. These funds are still found in the public service, but are gradually being phased out and are becoming rarer.

Superannuation after the 2002 amendments 15.6 As previously mentioned, the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth), which commenced in 2002, radically reformed the laws applicable to the division of

superannuation interests for married couples and, since March 2009, for de facto couples (the definition of ‘spouse’ in FLA s 90MD now includes a ‘de facto spouse’). The 2002 legislative regime is an interesting amalgam of rules and judicial discretion. While discretion continues in relation to the actual adjustment in favour of one spouse from the other’s superannuation, there are now ‘rules’ that require the courts to deal with the relevant superannuation in accordance with the FLA (in particular, the new Pt VIIIB) and to value the interest (if applicable) by reference to the Family Law (Superannuation) Regulations 2001 (Cth). The value of a party’s interest in an accumulation fund is usually provided by the fund itself. It is also possible to ascertain the value of the interest at different points in time; for example, at the date of marriage, the date of separation and the date of the hearing or settlement. For a defined benefit interest, a Superannuation Information Form will also be completed and an expert accountant/valuer will generally use this information to determine the value of the interest. Sometimes a valuation might not represent the true value of the interest for the member spouse. This will be the case when a member spouse is receiving a [page 913] pension that cannot be commuted to a lump sum,16 or when the superannuation will be payable in the distant future.17 These factors must be taken into account when making an order to ensure that is ‘just and equitable.’ 15.7 Under Pt VIIIB of the FLA, a court may now make ‘orders in relation to superannuation interests of the spouses’ in s 79 or s 90SM proceedings.18 There are two types of superannuation orders that can be made — a payment splitting order and a flagging order.19

Splitting orders and flagging orders 15.8 In relation to superannuation, the court may make either a splitting order or a flagging order. A splitting order allows the court to split one party’s superannuation interest in favour of the other party. The superannuation interests of the parties can thus be divided between them in such proportions as the court finds appropriate. Section 90MT(1) of the FLA provides that a court may order that up to 100 per cent of the entitlement of a member spouse be paid to the other (non-member) spouse. The court can also make such orders as it thinks necessary for the enforcement of a splitting order.20 These orders will bind third party trustees who are served with the orders (but third party trustees should be afforded procedural fairness prior to the making of the order).21 As a splitting order is made in the context of overall property orders pursuant to s 79/90SM, the court retains discretion as to how superannuation interests will be treated in a particular case: see the discussion in the case of Marriage of Coghlan22 at 15.10. Splitting orders may be made in the growth phase or the payment phase of the superannuation. The order will either refer to a ‘base amount’—that is, a sum of money that will be transferred—or a percentage of the superannuation interest.23 This may be achieved in a number of ways. For example, a portion of the party’s superannuation that is subject to the splitting order may be paid directly to the other party if that person meets a condition of release (usually retirement), or the non-member spouse’s share of the superannuation may transferred into a new account in the name of that party in the same superannuation fund or rolled over into another fund into an account in that party’s name. This promotes the ‘clean break’ principle (see 13.7), and in some cases gives the non-member spouse a degree of control over investment decisions and other matters pertaining to the

[page 914] superannuation interest. It also enables each party’s interest in any future growth in the value of the superannuation to be accumulated separately. The court may order a superannuation split even if neither party seeks such an order.24 Likewise, the court may decline to make a splitting order where one is sought. In either case, the court should give reasons.25 Recently, in Meddow & Estate of the Late Ms Meddow,26 the wife died after the hearing but before judgment was handed down. So as to enable the husband to make payment to the wife’s estate, the husband made application to the Family Court for orders that his superannuation interest be split. The judge found that the Family Court has jurisdiction to make a splitting order from the superannuation interest of a surviving spouse in favour of the estate of the deceased spouse. Orders were made providing for the wife’s estate to be paid its entitlement by way of a splitting order. Where a defined benefit interest is split, the interest received by the non-member spouse takes the form of an accumulation interest. 15.9 Section 90MU of the FLA gives the court the power to make a flagging order, although anecdotally these are rarely made. A flagging order operates in a similar way to an injunction — it binds the trustee of the superannuation fund, directing the trustee not to pay out an interest to a member pending an order of court or agreement of the parties. A flagging order would generally be made as an interim order to preserve the superannuation interest until the court can determine what orders are just and equitable (ie until trial). This provision is logical, as sometimes a court might consider that it is more just and equitable to ‘flag’ a superannuation interest than to split it immediately, especially if one of the parties is nearing retirement age or is otherwise likely to meet a condition of release. This is of particular importance in the

case of defined benefit schemes as it will allow the value of the superannuation to finally crystalise. First, these orders injunct the trustee from paying out a superannuation interest (effectively freezing the interest until the flag is lifted) and, second, they require the trustee to notify the court when an interest becomes payable.27 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, may take into account the likelihood that a splittable payment will soon become payable in respect of the superannuation interest.28 Not surprisingly, when a party brings the matter back to court, the court will make a ‘flag lifting order’ so that it can then deal with the superannuation interest by making a splitting order. The court may also make a flag lifting order and decline to make a splitting order. [page 915]

Is superannuation property? 15.10 The power to make an order in relation to superannuation exists because s 90MC of the FLA provides that superannuation interests are ‘to be treated’ as ‘property’ for the purposes of para (ca) of the definition of ‘matrimonial cause’ (or para (c) of the definition of ‘de facto financial cause’) in s 4.29 In Hickey & Hickey,30 the Full Court took a broad view of s 90MC, stating that it should be treated as property ‘for the purposes of s 79’31 and approved its inclusion within the ‘preferred four-step approach’ to property settlement.32 (For a discussion of this approach, see 13.14). However, in the 2005 case of Marriage of Coghlan,33 the majority (Bryant CJ, Finn and Coleman JJ) of a specially constituted Full Court took the view that s 90MC does not mean that

superannuation is defined as ‘property’, but rather that it extends the court’s jurisdiction to make orders with respect to superannuation entitlements. In this case, the central question for determination was whether the trial judge had erred in failing to include the parties’ superannuation interests in the property pool. The parties’ most valuable asset was the husband’s pension entitlements, which were in the payment phase.34 The majority stated: We acknowledge that were it not for s 90MS(1), it might perhaps be possible to take the view that because of the provisions of s 90MC, superannuation interests should be regarded as synonymous with property for the purposes of proceedings under s 79. However we are of the view that the use of the word ‘also’ prevents such an interpretation. We interpret the use of the word ‘also’ in s 90MS(1) to mean that superannuation interests are another species of asset which is different from property as defined in s 4(1), and in relation to which orders can also be made in proceedings for property settlement under s 79. There is nothing in our view in s 90MS(1) which indicates that superannuation interests are to be treated as property in proceedings under s 79.35

The majority indicated a preference for the ‘two pools approach’, whereby superannuation is treated separately from other assets. The trial judge has a discretion as to how superannuation should be treated, but if superannuation is listed separately, ‘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 [page 916] and equity is achieved)’ to apply the ‘Hickey’ four-step approach to both pools.36 According to the majority, the ‘two pools approach’ is preferred in order that the ‘real nature’ of the superannuation interest can be taken into account.37 The majority reasoned that, notwithstanding that the value of the superannuation interest may be a very significant amount, a ‘superannuation interest may be no more than a present or future periodic sum, or perhaps a

future lump sum, the value of which at date of receipt is unknown’.38 Thus, based on the ‘two pools approach’, it is possible for the superannuation interests of the parties to be split in different proportions from the division of their non-superannuation assets. This is likely to occur where the contributions of the parties to the superannuation differ from the contributions to other assets; for example, where a spouse entered the marriage or de facto relationship with substantial superannuation and there were otherwise minimal initial contributions. The majority of the Full Court went on to say that when determining property settlement and considering the retrospective factors specifically in relation to superannuation interests, the following matters may be relevant: the relationship between years of fund membership and cohabitation; actual contributions made by the fund member at the commencement of the cohabitation (if applicable), at separation and at the date of hearing; preserved and non-preserved resignation entitlements at those times; and any factors peculiar to the fund or to the spouse’s present and/or future entitlements under the fund.39

Thus, although superannuation is to be ‘treated as property’, according to the majority in Coghlan this does not mean that it is actually property. When determining property settlement, it should be recognised that superannuation is a different species of asset. As a result, the Full Court in Coghlan favoured a ‘two pools approach’, where the pool of superannuation was assessed and divided separately from the pool of non-superannuation assets. Superannuation should be ‘treated as property’ and included in the list of the parties’ assets regardless of whether superannuation splitting orders are sought or made,40 and must be considered at all stages of the s 79/90SM process. It is worth noting that the provisions of s 79A/90SN (on setting aside an order: see 15.68ff) 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.41

[page 917] 15.11 Following Coghlan, the Family Court has grappled with how to deal with superannuation interests. There is no requirement that superannuation be split between the parties in all cases. The court retains discretion as to whether the superannuation is split and, if so, the proportions in which it is to be split. The ‘mix’ of superannuation and non-superannuation assets is a matter for the court’s discretion.42 However, the Full Court has been critical of the failure of judges at first instance to provide adequate reasons for their assessment of the manner in which superannuation interests have been divided.43 For example, in M v M,44 the husband’s superannuation interest was valued at $1.081 million. It was payable as a fortnightly pension, but would not be available as a lump sum payment for a further 16 years. The total asset pool, including the superannuation, was valued at $1.57 million. The trial judge made orders providing that the nonsuperannuation asset pool would be divided 52.5/47.5 per cent in favour of the wife. The effect of such orders was that the husband would retain his superannuation interest and the wife would pay the husband $98,000. The Full Court held that the trial judge had given insufficient weight to the wife’s indirect contributions to the husband’s superannuation. Their Honours re-exercised the discretion and, so as to achieve a just and equitable outcome, ordered that the husband retain his superannuation interest; that the wife receive the entire equity in the former matrimonial home, which was valued at $510,000; and that each party retain the assets currently in their position More recently, in Surridge & Surridge,45 the parties were married in 1996 and the wife had been a member of the police force superannuation scheme from 1987 until she ‘retired hurt’ from the police force in 2006. At the time of the trial she was receiving a pension of $1000 per week. Foster J adopted a ‘two pools approach’ which in effect excluded the wife’s pension from the primary pool. His Honour emphasised the overwhelming

contributions the wife had made to her pension. When pressed, the husband’s counsel had difficulty asserting a relevant contribution to the wife’s superannuation made by the husband, save that they were married. On this basis, Foster J made orders for a slight adjustment of 5 per cent (equating to $20,000) from the primary asset pool in favour of the husband. Defined benefit superannuation interests continue to pose difficulties, particularly in situations where pensions are in their payment phase. In both Semperton & Semperton46 and Craig & Rowlands,47 a ‘two pools approach’ was adopted at first instance but, according to the Full Court, the trial judges failed to take into account the ‘different characteristics’ of a pension in its payment phase. [page 918] The interesting question is: what has been the practical effect of these amendments? Research findings evaluating the impact of the 2002 superannuation reforms found that in most cases the asset pool available for distribution between the parties increased, giving women greater access to superannuation. Interestingly, however, women received marginally less of the nonsuperannuation assets than they had in a survey conducted prior to the reforms.48

Superannuation agreements 15.12 Parties may enter into financial agreements that deal with the superannuation interests of either or both of the parties. Such agreements are known as superannuation agreements and can form part of financial agreements entered into in relation to property and/or maintenance: see 15.46. The court cannot make an order splitting superannuation if the superannuation interest is subject to a superannuation agreement (s 90MO). Further, the

superannuation interest does not need to be in existence at the time the agreement is entered into (ss 90MH and 90MHA). Such agreements may deal with the splitting of superannuation interests (s 90MJ). Superannuation flags can also be effected by way of superannuation agreements (s 90ML) and lifted by way of flag lifting agreements (s 90MN). As with all financial agreements, in order to be binding, a superannuation agreement must comply with formal requirements.

Injunctions Introduction 15.13 Section 114 of the FLA gives the court power to grant various kinds of injunctions. Injunctions relating to ‘personal protection’ and other issues relating to family violence are dealt with in Chapter 3. The present section deals with injunctions relating ‘protection of property’. Section 114(1) of the FLA (which only applies to married couples) contains provisions relating to the granting of independent injunctions; that is, it provides a form of relief in its own right. Injunctions granted pursuant to s 114(3) for married couples, and s 114(2A) or s 90SS(1)(k) for parties to de facto relationships that have broken down, are ancillary injunctions; that is, injunctions granted in aid of some other form of relief. For married couples, the proceedings must be between the parties and fall within the definition of ‘matrimonial cause’ (s 4(1)(e)). So far as parties to de facto relationships are concerned, according to the Full Court in Norton v Locke,49 an application for an injunction pursuant to s 114(2A) or [page 919]

s 90SS(1)(k) can only be granted in relation to a ‘de facto financial cause’, and requires a de facto relationship to be established. There is no provision and no scope for granting an independent injunction in relation to de facto couples. 15.14 An injunction under s 114 of the FLA may be used to restrain one party from disposing of assets, pending the determination of proceedings for property division. Such an injunction may be granted under s 114(1), either as one ‘in relation to the property of a party to the marriage’50 or as one relating to the ‘use of the matrimonial home’51 (where that is the property in question). Alternatively, injunctions may be granted under s 114(2A) or (3), or s 90SS(1)(k) as ancillary remedies in aid of other substantive proceedings. In Re Dovey; Ex parte Ross,52 for example, an injunction was used by the wife to restrain the husband from disposing of property and spending the proceeds of the sale before the determination of property proceedings. An injunction may be issued to restrain the sale of a property when a better price could be obtained.53 It may also relate to the disposition of property generally, or prohibit actions other than sale, such as encumbering real estate or accessing funds or leave entitlements. It is also possible for a mandatory injunction to be made under this section; for example, requiring a party to service a mortgage.

Injunctions restraining the disposition of property 15.15 Following an application for property settlement, injunctions are often used to prevent disposition of assets before the matter has been determined.54 An injunction may restrain the disposition of particular property, or it may attach to the proceeds of sale of property that has already been sold.55 There is thus some overlap between injunctions and the court’s power under s 106B to set aside transactions: see 15.29–15.34. The question whether

an injunction pursuant to s 114(2A), (3) or s 90SS(1)(k) can be granted in respect of property that is not yet [page 920] in existence at the date of the application was answered in the affirmative by the Full Court in the 1989 case of Law-Smith & Seinor.56 An interlocutory injunction will not be granted unless it can be shown that there is a serious issue to be tried, that the balance of convenience supports the making of the order,57 and that some prejudice will otherwise flow to the applicant.58 The courts are reluctant to interfere with the rights of the owner of property and will generally impose the minimum restrictions necessary to obtain the required protection for the applicant.59 An injunction may impede a party from carrying on a business or dealing in good faith with assets; however, the courts will generally not prevent a party from engaging in ordinary day-to-day expenditure and business activity.60 In Mullen & De Bry,61 the Full Court clarified that the earlier Full Court decision in Waugh & Waugh62 did not lay down a ‘fundamental’ or ‘threshold’ question that requires an intentional scheme to dispose of assets which will result in defeating the applicant’s claim.63 As recently expressed by Watts J in Eastman & Eastman,64 ‘evidence of intention is only one consideration. A mere thought on fear of disposition by a spouse, absent any context where an objective risk might be said to exist, is still not enough’.

Orders and injunctions against third parties 15.16

Prior to the introduction of the Family Law Amendment

Act 2003 (Cth), courts exercising jurisdiction under the FLA had limited powers to make orders or grant injunctions against third parties. The major issue that arose in the context of the use of the injunction to restrain the disposition of assets was the extent to which the rights of parties other than the husband and wife could be affected by powers exercised in proceedings under the FLA. Third parties have the right to seek leave to intervene in proceedings under the Act between married or de facto spouses,65 and the court may make an order declaring a third party an owner of property. Such ownership may arise in law or in equity.66 The FLA is an exercise [page 921] of the ‘marriage’ and ‘divorce and matrimonial causes’ powers in placita (xxi) and (xxii) of s 51 of the Constitution and, since 2009 pursuant to placita 51(xxxvii), following the breakdown of a de facto relationship: see also Chapter 4 and 12.43–12.44. The question is thus raised: to what extent does legislation enacted in exercise of those powers, either in the form of an injunction or the making of orders pursuant to s 79/90SM, permit the infringement of third party rights? The issue arises in situations where an asset is owned wholly or in part by a third party (such as a relative) or by a company or trust (family or otherwise). In some cases, the matter is complicated by the fact that the ‘third party’ is in reality the ‘creature’ of a party to the marriage and is under his or her control. For example, companies and discretionary trusts are the main vehicles for financial planning and through which businesses may operate. At law, companies are regarded as separate legal entities from the shareholders and directors. The trustee of a discretionary trust is regarded as the legal owner of trust property and the beneficiaries have an equitable interest in the trust property.

Generally, assets held by third parties will not form part of the asset pool in a family law matter. A number of decisions have, however, provided guidance in relation to assets held by a company or a family trust. The central feature is the extent of the ability of the party to the marriage or de facto relationship to control the company or trust: see 13.23–13.25. 15.17 In the 2008 case of Kennon v Spry,67 a majority of the High Court (French CJ, Gummow and Hayne JJ) held that the assets of the trust, coupled with the trustee’s power of appointment and the beneficiary’s right to due administration of the trust, constituted ‘property’ for the purposes of the FLA:68 see further, 13.23–13.25. Thus the assets of the trust were regarded as the property of the parties. The trial judge had ordered that the husband pay the wife a lump sum amount without earmarking the assets that would be used to satisfy this debt. At the enforcement stage, the Full Court was obliged to address the question whether the husband as controller of the trust could utilise the assets of the trust to satisfy his personal liability to the wife. The Full Court answered this question in the affirmative, even though the rights of third parties — the children of the marriage — would be significantly affected.69 [page 922] So far as companies are concerned, in Ascot Investments Pty Ltd v Harper,70 the husband had a substantial but not a controlling interest in a company. The husband and three of the couple’s sons were directors of the company. The husband had been ordered to transfer shares in the company to the wife, which he refused to do. The company’s memorandum and articles of association gave the directors complete discretion to refuse to register any transfer of shares. The High Court reasoned that the Family Court could make orders if the company was a ‘sham’ or a ‘puppet’ of the

husband. However in this case, although the husband exerted control over the company, this was insufficient for the company to be regarded as his ‘puppet’.71 Thus the High Court placed emphasis on the husband’s lack of legal control over the company. Importantly, the High Court in Ascot Investments provided some guidance as to the power of the Family Court to make orders and injunctions against third parties. According to Gibbs J (with whom Stephen, Aicken and Wilson JJ agreed), generally ‘there is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform’.72 Thus prior to the commencement of Pt VIIIAA, the power of the Family Court to grant orders or injunctions against third parties was limited.73

Situation after the commencement of Pt VIIIAA 15.18 The power of the court to deal with third parties — and particularly creditors — under the FLA changed significantly on 17 December 2004 with the commencement of Pt VIIIAA.74 Note that since 1 March 2009, Pt VIIIAA has applied [page 923] to de facto couples by virtue of s 90TA of Pt VIIIAB of the FLA. Section 90TA specifically states that Pt VIIIAA will apply to orders and injunctions in relation to maintenance, declaration of property interests and alteration of property interests in the case of de facto couples. The section also contains a comparative table which substitutes terminology and the relevant sections that apply to married partners with terminology and the relevant sections that apply to de facto couples.

As mentioned above, the court has traditionally been reluctant to affect the property rights of third parties given the High Court’s decision in Ascot Investments Pty Ltd v Harper.75 The effect of the Ascot Investments case was to establish that the Family Court cannot make an order if its effect is to deprive a third party of an existing right, or impose on a third party a duty that the party would not otherwise be liable to perform. Part VIIIAA limits the effect of Ascot Investments, but does not completely override it. The court now has wide powers to make certain orders and injunctions against third parties. The main provisions of Pt VIIIAA are as follows.76 Section 90AA sets out the object of the Part, being to allow the court to make an order under s 79 or s 114 which is directed to or alters the rights, liabilities or property interests of a third party. Section 90AB defines ‘third party’, in relation to a marriage/de facto relationship, as a person who is not a party to the marriage/de facto relationship (this can include companies, because ‘person’ includes a body politic or corporate: s 2(C) of the Acts Interpretation Act 1901 (Cth)). Section 90AC appears to emphasise that the intention of Pt VIIIAA is to be as wide as possible. This section provides: (1) This Part has effect despite anything to the contrary in any of the following (whether made before or after the commencement of this Part): (a) any other law (whether written or unwritten) of the Commonwealth, a State or Territory; (b) anything in a trust deed or other instrument. (2) Without limiting subsection (1), nothing done in compliance with this Part by a third party in relation to a marriage/de facto relationship is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1).

In other words, if there are any inconsistencies, Pt VIIIAA overrides any other law of the Commonwealth or of a state or territory or any trust deed or other instrument, even if the law or instrument was made before the commencement of the new Part.

[page 924] Section 90AD extends the definition of matrimonial cause/de facto financial cause in s 4 and the definition of property in s 114(1)(e) to a debt owed by a party to a marriage/de facto relationship (‘property’ in this context therefore includes debt). 15.19 Under s 90AE(1), the court may now make any of the following orders in s 79/90SM proceedings: (a) an order directed to a creditor of the parties to the marriage [/de facto relationship] to substitute one party for both parties in relation to the debt owed to the creditor;77 (b) an order directed to a creditor of one party to a marriage [/de facto relationship] to substitute the other party, or both parties, to the marriage [/de facto relationship] for that party in relation to the debt owed to the creditor;78 (c) an order directed to a creditor of the parties to the marriage [/de facto relationship] 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;79 (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 [/de facto relationship] to the other party.

Section 90AE(1)(d) clearly overrides the direct effect of the High Court’s decision in Ascot Investments, as a private company can now be directed to register a transfer of some or all of one party’s shares from, say, the husband to the wife, but Ascot Investments is still relevant to other issues involving third parties. Moreover, 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/de facto relationship,80 or alter the rights, liabilities or property interests of the third party in relation to the marriage/de facto relationship.81 [page 925]

15.20 The courts’ powers under Pt VIIIAA can only be exercised in the circumstances set out in s 90AE(3) and (4): (3) The court may only make an order under subsection (1) or (2) if: (a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage [/de facto relationship]; and (b) if the order concerns a debt of a party to the marriage [/de facto relationship] — it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and (c) the third party has been accorded procedural fairness in relation to the making of the order;82 and (d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and (e) the court is satisfied that the order takes into account the matters mentioned in subsection (4). (4) The matters are as follows: (a) the taxation effect (if any) of the order on the parties to the marriage [/de facto relationship]; (b) the taxation effect (if any) of the order on the third party; (c) the social security effect (if any) of the order on the parties to the marriage [/de facto relationship]; (d) the third party’s administrative costs in relation to the order; (e) if the order concerns a debt of a party to the marriage [/de facto relationship] — the capacity of a party to the marriage [/de facto relationship] to repay the debt after the order is made; (f) the economic, legal or other capacity of the third party to comply with the order;83 (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;84 (h) any other matter that the court considers relevant.

[page 926] 15.21 In Pavone & Pavone,85 the parties personally and through entities controlled by them owed a considerable debt to the Commissioner of Taxation, who intervened in the proceedings. The Commissioner wanted certain properties owned by Pavone

Pty Ltd — a company in which the parties were equal shareholders and the husband was the sole director — to be sold, and the proceeds used to extinguish the debt. By way of property settlement, Austin J declined to make orders altering the interests of the parties in property and instead made orders pursuant to s 78 declaring the interests of the parties in their property. Austin J’s failure to make orders for property settlement raised the question whether the court had the power to nonetheless make orders under s 90AE of the Act, which would in effect force a third party — Pavone Pty Ltd — to pay extraneous liabilities of the parties and another third party to the Commissioner. His Honour answered this question in the negative and went further saying that ‘[e]ven if such power did exist, its exercise is both circumscribed (ss 90AE(3), 90AK) and discretionary (s 90AE(2))’.86 15.22 Section 90AF gives the court power to make orders or injunctions binding third parties in s 114 proceedings (for general discussion of injunctions, see 15.13–15.15). For example, under s 90AF(1) the court may make an order either restraining a third party from repossessing property of a party to a marriage/de facto relationship,87 or restraining a third party from commencing legal proceedings against a party to a marriage/de facto relationship.88 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/de facto relationship,89 or alters the rights, liabilities or property interests of a third party in relation to the marriage/de facto relationship.90 Where a court proposes to make an order or grant an injunction under subs (1) or subs (2) of s 90AF, 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 [/de facto relationship]; and (b) if the order or injunction concerns a debt of a party to the marriage [/de facto relationship] — it is not foreseeable at the time that the order is made, or the

injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and (c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

[page 927] (d) for an injunction or order under subsection 114(1) — the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and (e) for an injunction under subsection 114(3) — the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and (f) the court is satisfied that the order or injunction takes into account the matters mentioned in [s 90AF(4)].

Section 90AF(4) sets out the matters that the court must take into account before it can make an order or grant an injunction under s 90AF: (a) the taxation effect (if any) of the order or injunction on the parties to the marriage [/de facto relationship]; (b) the taxation effect (if any) of the order or injunction on the third party; (c) the social security effect (if any) of the order or injunction on the parties to the marriage [/de facto relationship]; (d) the third party’s administrative costs in relation to the order or injunction; (e) if the order or injunction concerns a debt of a party to the marriage [/de facto relationship] — the capacity of a party to the marriage [/de facto relationship] to repay the debt after the order is made or the injunction is granted;91 (f) the economic, legal or other capacity of the third party to comply with the order or injunction;92 (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;93 (h) any other matter that the court considers relevant.

In Rand & Rand,94 the Full Court specifically stated that a trial judge proposing to make a restraining order under s 90AF is required when giving reasons for the decision to address the criteria in s 90AF(3) and (4).

[page 928] Section 90AG provides that if an order or injunction binds a person in the capacity of trustee in relation to property, then the order or injunction is also binding on any person who subsequently becomes the trustee. Section 90AH provides that a third party in relation to a marriage/de facto relationship is not liable for loss or damage suffered by any person because of things done (or not done) by the third party in good faith in reliance on an order or injunction made or granted by a court in accordance with Pt VIIIAA. Section 90AJ provides that if the court makes an order or injunction under Pt VIIIAA and a third party incurs expense as a result, the court can make such order as it considers just for payment of the reasonable expenses of the third party, taking into account the principle that the parties to a marriage/de facto relationship should bear the reasonable expenses of the third party equally. Section 90AK provides that the court must not make an order or grant an injunction under Pt VIIIAA if it would result in the acquisition of property from a person other than on just terms and be invalid because of placitum 51(xxxi) of the Constitution.

Practical implications of Pt VIIIAA 15.23 So what are the practical implications of Pt VIIIAA? While courts exercising jurisdiction under the FLA have always been capable of directly or indirectly affecting third parties (by virtue of provisions such as ss 78 and 106B (formerly ss 85 and 114), Pt VIIIAA goes much further as it authorises discretionary interference with the rights and powers of third parties. The change may have implications for many non-family law legal practice areas such as conveyancing, loan transactions and other credit arrangements. The most obvious consequence, of

course, is the potential increase in the involvement of third parties in both s 79 and associated proceedings. For example, in the 2005 case of Hughes-Kempe & Kempe & Bocampe Pty Ltd,95 the wife sought leave to amend her property application and to join 22 additional (third party) respondents who controlled several named discretionary trusts of which the husband was a beneficiary. More specifically, the wife sought orders under Pt VIIIAA directing that the proposed (third party) respondents ‘be compelled to use their powers to cause the trustees of the individual trusts to make such capital distributions from the funds of the trust to the husband as the court deems appropriate’.96 In allowing the wife’s amendment, the trial judge (Morgan J) stated that she was ‘not required to determine the complex issues raised by this proposed amendment’.97 Nevertheless, her Honour did make some interesting comments about the complexity of the [page 929] issues and, in her view, the apparent inconsistency between the provisions in the legislation and the explanatory memorandum that introduced the changes:98 The original explanatory memorandum stated that the Act was to be amended to give the Court power to bind third parties in order to give effect to property settlements. Reference was made to the difficulties faced by the Court in directing a third party to act in order to give effect to property settlements. The revised explanatory memorandum stated in relation to section 90AE that the provision was intended to apply only to the procedural rights of the third party. It was stated that it was not intended to extinguish or modify the underlying substantive property rights of third parties. However, the plain words of section 90AE(2)(b) apparently contradict those statements. Another contradiction is found in section 90AF which provides that in proceedings under section 114 the Court may make an order restraining a person from repossessing the property of a party to marriage. That is apparently inconsistent with the statement that Part VIIIA is intended to apply only to the procedural rights of third parties. Further support for the proposition that, despite the statements in the Explanatory Memoranda, the relevant provisions allow the Court to divest a third

party of property is to be found in section 90AK which provides that the Court must not make an order or grant an injunction in accordance with Part VIIIA which would result in the acquisition of property other than on just terms and which would be invalid because of paragraph 51(xxxi) of the Constitution. In my view, reference to the Explanatory Memoranda does not determine the apparent conflict between the statements there made and the provisions of Part VIIIAA to which I have referred … It is arguable, that although apparently contrary to the objects and intention expressed in the Explanatory Memoranda, the provisions to which I have referred do not satisfy the test therein enunciated.99

15.24 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 on 1 September 2006 and special leave was refused.100 Consequently, unless the High Court determines otherwise in the future, it may be assumed that the third party provisions are constitutionally valid. [page 930] The application for special leave to appeal arose from the decision of O’Ryan J in Hunt v Hunt.101 The wife sought orders against the husband and various third parties related to a company (Primo Meats), which, she claimed, was controlled by the husband or, alternatively, was otherwise subject to the jurisdiction of the court either by virtue of s 106B or Pt VIIIAA of the FLA. The third parties sought summary dismissal of the wife’s application, arguing that the court had no jurisdiction to make the requested orders as the provisions relied on were unconstitutional and there was no reasonable likelihood of success. In his decision, O’Ryan J upheld the validity of the relevant provisions (specifically ss 106B (see 15.29–15.33), 90AE(2)(a) and 90AF(2)(a)) and indicated an intention to dismiss the application for summary judgment. Following a further hearing two months later, his Honour revoked the prior orders dismissing the summary judgment application and instead dismissed the objections to

jurisdiction made by the applicants.102 In reaching this decision, O’Ryan J provided the following analysis of Pt VIIIAA (and in particular ss 90AE and 90AF): [64] Section 90AA provides that the object of Part VIIIAA is to allow the court, when it is either making an order altering property interests in respect of the parties to a marriage under s 79 or de facto relationship under s 90SM, or making an order or injunction under s 114 to make an order under s 79/90SM or s 114, or grant an injunction under s 114, that is directed to, or alters the rights, liabilities or property interests of a third party. When consideration is given to s 90AE(2)(b) and s 90AF(2) (b) the Parliament, in clear and unambiguous words, has expressed an intention to give power to deal with the rights and interests of third parties and not simply procedural rights and interests. … [71] Section 90AE confers certain powers to make orders under s 79/90SM binding on third parties. The power is discretionary and there is no obligation to make any of the orders identified in the section. The discretion given by s 90AE(1) and s 90AE(2) must however, be exercised by reference to the matters set out in s 90AE(3) and s 90AE(4). The discretion is therefore broad but is not unfettered. The third party must be accorded procedural fairness in relation to the making of an order under s 90AE. Further, the court must always make orders that are just and equitable. [72] Section 90AE(1)(d) provides that in proceedings under s 79 the court may 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. It would appear to deal with the circumstances in Ascot Investments v Harper

[page 931] [(1981) 148 CLR 337] and thus would prevent a party escaping an obligation to transfer property legitimately the subject of an order under s 79 to the other party to the marriage because of the refusal of a director of the company or the company itself to register the transfer. By reason of s 90AC it is irrelevant that it may override the articles of a company, the general law, or a state law. Although there is no issue in this case as to the constitutional validity of s 90AE(1) I accept the submission on behalf of the wife that s 90AE(1)(d) is a law with respect to marriage or matrimonial causes and is also supported by the corporations power in s 51(xx) of the Constitution: Actors and Announcers Equity Association of Australia and Others v Fontana Films Pty Ltd (1982) 150 CLR 169. [73] The effect of s 90AE(3) is to prescribe circumstances which must exist before the court can exercise its discretion to make an order under s 90AE(1) or s 90AE(2). It sets out preconditions to the exercise of power. So, if the court were satisfied that the conditions in s 90AE(3)(c), (d) and (e) were met, and that for the purposes of s

90AE(3)(a), the making of the order were either ‘reasonably necessary’ or was ‘reasonably appropriate and adapted, to effect’ what s 79(1) is directed to achieving, namely, a division of property between spouses, the court can then make an order. … [83] In conclusion, when consideration is given to each of the provisions of Part VIIIAA it is clear that they are directed to making effective the powers under s 79 and s 114 of the Family Law Act. In my opinion, this is necessary given the need in financial proceedings between parties to a marriage under the Family Law Act to deal with issues that arise which interface between the interests of parties to the marriage and the rights, duties and obligations of third parties.103

In his editorial discussion of this judgment, Federal Magistrate Altobelli commented: Thus, at least for the present time, the third party powers contained in ss 90AE(2) and 90AF(2) have been found to be laws with respect to marriage, divorce or matrimonial causes, or at least incidental thereto. His Honour notes that the entire scheme of Part VIIIAA is such as to carefully constrain the Court’s capacity to make orders against third parties so that it is sufficiently connected to the powers that support it.104

15.25 In the more recent decision of AC & VC,105 the Full Court (Bryant CJ, Finn and Strickland JJ) were not prepared to define the outer limits of Pt VIIIAA, but adopted an expansive approach. In this case, the husband, wife and three children were the specified beneficiaries of a discretionary trust and the husband’s [page 932] mother was a discretionary beneficiary. The husband’s mother was also the controller of the trust. The trial judge had made orders that the vesting date of the trust be brought forward and that the trust fund be distributed between the five specified beneficiaries and a monetary payment made to the husband’s mother. On appeal, the Full Court had no doubt that such orders fell within the powers of Pt VIIIAA, even if they were at the ‘expense of third party interests’, as (referring to the submissions of the AttorneyGeneral) the power ‘was exercised in order to effect a division of the property of parties to a marriage, or to make orders ancillary to

that division’.106 However, such a power is not without restrictions and, if exercised, the legislative safeguards that Pt VIIIAA provides for third parties must be observed.107 Furthermore, if the order is made under s 79, it must be ‘just and equitable’ and, if pursuant to s 114, ‘proper’.108 In this case, ‘it was necessary for her Honour to be satisfied concerning the conditions of reasonable necessity, and of procedural fairness contained in s 90AF(3)(a) and (c) respectively, and also that the proposed orders were proper under s 114(1)’.109 The Full Court was not satisfied that this had been achieved as the husband’s mother had not sought a monetary payment, and nor had it been anticipated. The husband’s mother — who was both the controller of the trust and also a general beneficiary — had not been accorded the required procedural fairness and, as a result, the orders could not be said to be ‘proper’. Thus, as this case demonstrates, Pt VIIIAA provides important protections for third parties. 15.26 Other potential uses of Pt VIIIAA include ordering a lender to release one party from liability under a mortgage, or allowing a party to refinance a mortgage in his or her own name. A court may potentially also order a spouse’s parents or other family members to sell property to satisfy one party’s claim where that party has made a contribution to the property. Although the exact parameters of Pt VIIIAA are yet to be defined, it can be concluded that in relation to third party proceedings, Ascot Investments v Harper110 (see 15.17) has not been completely overruled. Importantly, the Full Court has adopted a broad approach to Pt VIIIAA. It is not limited to procedural orders, but the safeguards within the legislation protecting and considering the position of third parties must be strictly adhered to. Moreover, the overarching considerations in relation to orders for alteration of property interests, that they must be ‘just and equitable’, and in relation to injunctions, that they must be ‘proper’, are likewise applicable.

[page 933]

Section 85A 15.27 There are other means currently available to the Family Court for taking account of benefits derived from family companies and trusts. For example, the adjournment provisions contained in s 79(5)–(7)/90SM(5)–(7) may be utilised where a party has expectations under a discretionary trust or superannuation.111 Another device is s 85A, which provides as follows: (1) The Court may, in proceedings under this Act, make such order as the Court 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. (2) In considering what order (if any) should be made under sub-section (1), the Court shall take into account the matters referred to in sub-section 79(4) so far as they are relevant. (3) A court cannot make an order under this section in respect of matters that are included in a financial agreement.

Section 85A was inserted into the FLA in 1983 to allow the Family Court to make orders in relation to trusts where the trustee was a third party. The ‘in relation to’ requirement in s 85A(1) requires that ‘there be a sufficient association between the property the subject of a settlement and the marriage’,112 which must only be present at the time of the court’s determination and not necessarily at the time of settlement. This was confirmed in Kennon v Spry113 (see 13.25), where Kiefel J stated: Section 85A(1) is intended to have a wide operation, to property held for the benefit of the parties on a settlement and to which they have contributed. It is intended to apply to settlements whether they occur before or during marriage. The essential requirement of the section is that there be a sufficient association between the property the subject of a settlement and the marriage the subject of proceedings. It does not require that a settlement made prior to marriage be directed to the particular marriage at the point it is made. It is sufficient for the purposes of the section that the association of which it speaks (‘made in relation

to’) be present when the court comes to determine the application of the property settled under s 85A(1).114

Justice Brereton, writing extra-judicially, notes that he agrees with Kiefel J’s conclusion that each disposition of property to a trust can be regarded as a [page 934] ‘settlement’ and thus falls within the parameters of s 85A. However, according to his Honour the issue that Kiefel J failed to address was whether all assets can be the subject of s 85A, or only those assets dealt with in each settlement. According to Brereton J, ‘[a]rguably, proceeds of property so settled would be captured. But the assets originally settled and their proceeds, and assets acquired by the trust from its own resources (as distinct from settled on it) would not.’115 15.28 In Rice & Rice,116 Cronin J took the opportunity to examine the parameters of s 85A. The husband and wife purchased a farm in 1968 that was registered in the husband’s name only. In 1997 the parties were in dire financial straits and the husband applied for a pension, but was refused as the farm was registered in his name. In order to gain access to a pension and with the consent of the wife, in 1998 the husband transferred the farm, livestock and equipment into the names of the parties’ two daughters in equal shares. The parties continued to live on the farm, but from that point on the relationship between the husband and the wife deteriorated. Relying on s 85A, the wife applied for orders requiring the daughters to transfer 35 per cent of the farm, livestock and equipment to her. According to Cronin J, the enlivenment of s 85A requires a settlement that must have a nuptial element and create a right, property or interest for at least one of the parties. Furthermore, if s 85A is to apply, the nuptial settlement ‘has to create a right,

property or interest for at least the wife (if not the husband)’.117 His Honour found that property had been transferred to the daughters on the basis that the parents could live for the rest of their lives on the farm and benefit from the farm. Furthermore, this arrangement was a quasi-contract which created an interest in the land for the wife and the husband. The livestock and equipment were an out-and-out gift. Cronin J concluded that the arrangements were a nuptial settlement which thus enlivened s 85A and consequently s 79. According to his Honour: To be a settlement therefore, there must be a disposition of property on certain terms. Those terms must have some continuing provision for the parties who enjoy the property the subject of the settlement. Nothing in s 85A indicates that that enjoyment or those terms and conditions have to give rise to equitable interests or even rights enforceable in equity but one must conclude that they do. What must be apparent is an obligation upon the legal title holder. If that obligation is not met and the court then finds that the settlement is a nuptial settlement, the provisions of s 85A may be enlivened.118

[page 935] After applying s 79 criteria to the farm, which was the only asset of any value, orders were made altering the interests of the parties in the property so that the wife received a 25 per cent interest in the farm.

Setting aside transactions 15.29 In some cases, it will be too late to restrain the disposition of property because a transaction has already taken place. To address such circumstances, courts exercising jurisdiction under the FLA also have the power to set aside certain transactions under s 106B119 (formerly s 85). Once a substantive application has been made, s 106B is capable of operating retrospectively to catch transactions effected prior to the institution of the substantive

proceedings.120 Since 2009 and the referral of powers in respect of a de facto financial cause, similar powers are available in respect of de facto couples on the breakdown of the relationship. Section 106B (set out below) refers to ‘in proceedings under this Act’ and thus includes proceedings on the breakdown of a de facto relationship. Section 106B provides as follows: (1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. … (3) The court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested. … (5) In this section, ‘disposition’ includes: (a) a sale and a gift; and (b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or trust.

This provision is essentially curative, whereas s 114 (in relation to injunctions) is preventive (see 15.13–15.15). However, there is some overlap between ss 106B and 114. [page 936] 15.30 In Gould & Gould; Swire Investments Ltd,121 the constitutional validity of the precursor to s 106B (s 85) was considered at some length by the Full Court and was upheld. The appeal from O’Ryan J’s decision in Hunt & Hunt122 once again raised the question of the constitutional validity of s 106B (and more specifically the provisions in Pt VIIIAA), but the High Court refused special leave to appeal.123 Consequently, it can be concluded that s 106B is constitutionally valid. For further discussion of Hunt, see 15.24.

Setting aside a transaction will almost inevitably involve third parties. The Full Court in Gould rejected the argument that the then s 85 was confined to situations where a third party is the ‘alter ego’ of a spouse or where the transactions are shams. According to the Full Court, there is no justification, on its plain wording, to read the section down in that way.124 The Full Court in Gould further held that the Family Court has jurisdiction in this context over foreign corporations.125 Consequently, the Family Court has jurisdiction to set aside transactions, including those involving bona fide third parties, subject of course to the safeguard of s 106B(3) (formerly s 85(3)), which goes to the exercise of jurisdiction:126 see 15.32. 15.31 There are a number of conditions precedent to the existence of jurisdiction under s 106B. In Gelley & Gelley (No 2),127 Treyvaud J set out the requirements for a successful application under s 106B as follows. 1.

2.

‘There are on foot proceedings under the Act, or completed proceedings the orders from which still have force and effect.’ Proceedings other than the s 106B application itself must have been instituted;128 s 106B is an ancillary power, not an independent head of power. However, jurisdiction is not lost if proceedings have been completed.129 In VC & CG130 the Full Court indicated that it was generally undesirable to deal with a s 106B issue in a discrete trial prior to dealing with the substantive s 79 proceedings. ‘The instrument or disposition has been made, or is proposed to be made.’ The instrument or disposition sought to be set aside must have been made ‘by or on behalf of’ a party (ie a spouse or de facto spouse). [page 937]

3.

4.

‘The instrument or disposition is any one of a series of transactions by which that disposition is carried out.’131 It is not necessary that the instrument in itself transfers property away from one of the parties. In Marriage of Davidson (No 2),132 the trustees varied a discretionary trust by removing the husband as appointor; even though this was but one step in the scheme to defeat an order, it was found to fall within s 85. ‘The instrument or disposition is intended to defeat the order, existing or anticipated, and has that effect, or, irrespective of intention, is likely to defeat such order.’ Section 106B does not require an actual intention to defeat claims. In the 1993 case of Halabi v Artillaga,133 Nicholson CJ made it clear that the then s 85 contemplated two sets of circumstances that caused it to operate: … [first] that an instrument has been made with the intention of defeating an anticipated order in the proceedings, or secondly, regardless of the intention with which it has been made it is likely to have the effect of defeating such an order.134

5.

Although s 106B does not require an actual intention to defeat an existing or future order, it has been interpreted to require that an order must be objectively foreseeable, and that the transaction must be foreseeably likely to defeat that order. Thus ‘anticipated’ in s 106B(1) has been held to mean ‘expected’ or ‘reasonably probable’ according to an objective test.135 Despite the header to the section, which refers to transactions to defeat claims, it is an order and not merely a claim that must be foreseeable,136 and the terms of the order must foreseeably be such as would be defeated by the transaction.137 ‘The order defeated, or likely to be defeated, must be existing, or anticipated; it is not an anticipated claim.’ The second circumstance that Nicholson CJ referred to in Halabi is that it is necessary to establish a causal connection between the particular transaction sought to be set aside and the defeat of the order. This was not made out in the 1980 case of Marriage

of Whitaker,138 where the maintenance order was defeated by the husband’s bankruptcy and other supervening events, and not by the property transaction that was sought to be [page 938]

6.

7.

set aside. In the 1987 case of ANZ Bank v Harper,139 the Full Court found that it was not the transaction in question (the transfer of a mortgage as security) that was likely to defeat the wife’s claim for a large lump sum, but rather the husband’s expenditure of the funds loaned by the banks.140 ‘Insofar as the order be anticipated, it is one anticipated by the reasonable disponer at the time of the disposition, properly considering all the circumstances of the case.’ In the 1984 case of D & D,141 Gee J found that at the time the disposition was made, a reasonable person in the husband’s position would not have considered there being more than a 50 per cent chance of the wife obtaining the sum she sought, or indeed any sum.142 The requirement of foreseeability incorporated into s 106B(1) by the use of the term ‘anticipated’ restricts the potential of the section to operate retrospectively. Although an order needs to have been anticipated at the time of the transaction sought to be set aside, proceedings do not need to have been issued.143 ‘Anticipated’ means reasonably expected. It is an objective test.144 ‘The effect of the instrument or disposition is that the disponer lacks the capacity to satisfy the orders unless the instrument or disposition be set aside.’ According to Treyvaud J in Gelley,145 even if the criteria listed above are satisfied, the court may not set aside the transaction. The transaction must be sufficiently large that it is likely that the applicant’s claim could not be satisfied without recourse to that property. However, according to Nicholson CJ in Halabi v Artillaga146 it is sufficient to show that the asset pool has been significantly

8.

reduced by the transaction that is sought to be impugned. ‘The onus of proof, on the civil standard, is upon the applicant.’

Position of the bona fide purchaser 15.32 Section 106B of the FLA raises issues of conflict between the interests of a party to a marriage or a de facto relationship and those of a third party. The third party concerned could be a bona fide purchaser, or the transaction could be a deliberate sham. Section 106B(3) determines ‘how … the balance between [those interests] … is to be struck’.147 The nature of the third party’s interest will be an [page 939] important consideration influencing the court’s exercise of discretion whether or not to set a transaction aside. As the Full Court observed in Gould & Gould; Swire Investments Ltd,148 ‘[a]s would be expected having regard especially to the terms of s 85(3) [now s 106B(3)] the Family Court has been conservative in its application of s 85 [now s 106B] in cases involving a genuine third party.’149 In the 1981 case of Marriage of Abdullah,150 the court (Baker J) emphasised the practical difficulties of setting aside a transaction effected before the institution of substantive proceedings, particularly where the rights of third parties are involved. This goes to the exercise of the court’s discretion. It appears that the Family Court has been cautious in the exercise of its discretion to set aside transactions. Baker J observed: It would seem, therefore, that a disposition made bona fide and in the ordinary course of business may be caught if it has the effect of defeating an existing or anticipated order. I would suggest however that a court in the exercise of its discretion would under normal circumstances be loath to set aside a transaction

entered into with a bona fide purchaser for full value and in the ordinary course of business …151

15.33 Reported instances of transactions being set aside are few. Most concern sham transactions.152 The meaning of ‘sham’ is discussed in the 1994 case of Wilson v Wilson.153 In Halabi v Artillaga154 (see 15.31), Nicholson CJ held that if the transaction is a sham, the other party cannot be a ‘person interested’ under subs (3).155 This case involved an alleged agreement for a loan of $1.2 million (to the husband from his parents). Nicholson CJ held that the husband’s parents ‘would not be regarded as falling within the usual definition of bona fide purchaser’, but were persons interested and entitled to a lesser degree of protection than that given to a bona fide purchaser.156 In Heath & Heath; Westpac Banking Corp (No 2),157 the husband and wife were negotiating a property settlement. The husband applied for a loan from the bank [page 940] on the basis that he required the money to make payment to the wife in terms of the agreement. The bank knew that there was litigation pending between the husband and the wife. The bank approved the loan, and by way of security took a mortgage over a property in the husband’s name and over which the wife had caveated an interest. Funds were released directly to the husband pursuant to the mortgage loan and were subsequently dissipated by him. Nygh J held that the bank was a ‘purchaser’ within the meaning of s 106B, but that it was not bona fide without notice. The bank had constructive notice of the wife’s interest and should have ensured that the money was paid to the wife as part of her property settlement. If it had followed its own procedures, it would have discovered the wife’s caveat registered over the property. The bank had a duty to make those inquiries and searches. Thus the test for determining whether a purchaser has

acted in good faith is objective, not subjective. The bank’s appeal was dismissed. It may be that the court has a choice in a series of transactions as to which it will set aside; there may be more than one third party, and some may be bona fide third parties while others are not. In such a case, and where it is practicable, the court be more amenable to making an order where it leaves in place transactions that involve bona fide third parties. For example, in Marriage of Collins,158 after separation, the husband transferred sufficient money to Ms C to enable her to purchase two adjacent properties for $1.3 million, and she in turn entered into a contract to sell both properties to a third party for $1.7 million. The wife lodged caveats on the properties and obtained orders from the Family Court restraining the husband and Ms C from disposing of the proceeds of sale of the properties. The properties were then transferred to the third party. The husband unsuccessfully appealed the grant of the injunction against Ms C on various grounds; Ms C did not appear. While the wife did not seek to restrain the disposition of the properties themselves, that option was clearly open to her and would have provided better security. Ultimately, the wife was seeking to set aside the initial transfer of money to Ms C and the injunction was sought in aid of that application. Thus, the application was directed at, and successful against, a party who was not at arm’s length and had not paid value.

Conclusion 15.34 It is clear from the reported case law that the s 106B process involves several distinct stages. These were explained (in the context of the former s 85) by Nicholson CJ in Halabi v Artillaga159 (see 15.31–15.33) as follows: (a) determine whether the requirements of s 85(1) have been satisfied; (b) if so, treat the disposition as not having been made in arriving at a proper determination under s 79;

[page 941] (c) having done so, determine whether having regard to the rights of bona fide purchasers under s 85(3), the instrument should be set aside. The exercise of the discretion may depend upon whether there are sufficient funds available to the party who made the disposition to satisfy the order under s 79 without setting aside the disposition.160

Financial agreements and consent orders 15.35 The encouragement of settlements has been central to the philosophy of the FLA since its inception.161 The last two decades have witnessed an increased promotion of private ordering, in the interests of both the individuals concerned and the administration (including costs) of justice. While dispute resolution procedures have always been a feature of the Act, the 1996 amendments specifically encouraged an increased use of counselling and mediation in family law matters, culminating in the 2006 amendments. The processes that have been put in place in the FLA to encourage parties to settle their financial disputes have been described in Chapter 2. Agreements may be reached in situations where there is no dispute, but the parties wish to enter an agreement to create financial certainty in the event of the relationship breaking down. Alternatively, they may be used where the relationship has broken down, and the parties wish to formalise their financial arrangements without recourse to litigation. There are various avenues by which agreements reached by parties about their financial matters may be concluded. The three main avenues are informal agreements, consent orders and binding financial agreements. Only a very small proportion of financial matters are litigated before a judicial officer.162

To what extent can negotiated settlements be expected to reflect the outcome which would have resulted had full contested litigation occurred? In 1979, Mnookin and Kornhauser stated: Divorcing parents do not bargain over the division of family wealth and custodial prerogatives in a vacuum; they bargain in the shadow of the law.

[page 942] The legal rules governing alimony, child support, marital property, and custody give each parent certain claims based on what each would get if the case went to trial. In other words, the outcome that the law will impose if no agreement is reached gives each parent certain bargaining chips — an endowment of sorts.163

However, in more recent years, a number of factors have operated to reduce the reality of ‘bargaining in the shadow of the law’. In particular, where legal rules are highly discretionary (such as those currently governing spousal maintenance and property division on the breakdown of relationships), outcomes are unpredictable and the law’s ‘shadow’ is therefore indistinct. The nature of the assistance provided to the bargaining parties is highly significant; a party may be better informed of his or her legal rights if the adviser, conciliator or mediator has knowledge of the relevant statutory provisions and their interpretation. Moreover, the extent to which agreements reflect the substance of the law is affected by the degree of judicial scrutiny involved. The different procedures for giving legal effect to negotiated agreements about financial matters involve differing degrees of scrutiny by the courts. 15.36 The increasing promotion of private ordering in financial (and other) matters in family law is not without controversy. Family breakdown in many cases has an emotional effect on the individuals concerned which greatly reduces their capacity to view their positions dispassionately and to protect their respective interests. Power imbalance characterises many relationships (in particular, where there has been a history of violence and the

parties’ bargaining powers are consequently not equal). The reduced scope for lawyers in the resolution of disputes may diminish the protection afforded to individuals by the statutory framework. Some of these issues were raised in Chapter 2.

Orders made with the consent of the parties 15.37 Orders made by consent are a very popular means of settling the financial affairs of parties following a marriage or relationship breakdown. Section 80(1)(j)/90SS(1)(j) of the FLA gives a relevant court the power to make orders under Pt VIII or Pt VIIIAB (ie property and spousal maintenance orders) by consent. Consent orders can be made in court or may be approved ‘in chambers’, although if one of the parties is self-represented, it is more likely that the matter will be heard in open court. The procedural requirements are located in the relevant court rules.164 Consent orders may evolve through the dispute resolution processes discussed in Chapter 2. Once parties have reached agreement, they may apply to the Family Court to have orders made in accordance with the [page 943] agreement. Alternatively, proceedings may have been issued and during the course of the litigation the matter may settle. Applications for consent orders as a discreet application may only be filed in the Family Court and not in the Federal Circuit Court. The vast majority of family law disputes are resolved through consent orders.165 If the registrar refuses to make the orders the decision may be taken on review. 15.38 Consent orders are subject to judicial scrutiny. Although parties are not required to have independent legal advice — only

that they acknowledge that they are aware of their right to do so — much turns on whether parties have in fact received such advice. In the 1984 case of Smith v Smith,166 the Full Court observed: … where the parties consent to an order, particularly when legally represented, they are to be taken as having given full and proper consideration to all matters which lead up to the request to the Court to make an order by consent. That factor alone should therefore in the vast majority of cases be sufficient to satisfy a Judge that the order sought is just and equitable; for the very reason that he is doing exactly what the parties, properly advised, have asked him to do.167

In the 1991 High Court decision of Harris v Caladine,168 the High Court made clear that before making consent orders, the court must be satisfied that the requested orders are just and equitable.169 Brennan J stated that ‘[t]he making of a consent order in a s 79(1) matter is not automatic’,170 and that ‘when an application for a s 79(1) matter is made there is a discretion to be exercised with reference to the propriety of the provisions with respect to financial matters’.171 Consent orders are thus subject to judicial scrutiny. His Honour identified the advice available to the parties as a significant factor in the exercise of the court’s discretion to make a consent order. 15.39 The Full Court decision in Redman v Redman172 (Bryant CJ, Finn and Watts JJ) represents an example of the application of these principles in the post-Stanford173 era (see 12.34; 13.34–13.38). The husband and wife, who were in [page 944] an intact marriage, made application for orders to be made by consent. In terms of these orders, the husband was to transfer a house registered in his name into the name of both parties. The registrar refused to make the orders and the matter was taken on review. Faulks DCJ also refused to make the orders on the grounds that he suspected that the sole purpose of the proposed orders was

to transfer the family home from the husband’s name into the parties’ joint names under the FLA so as to avoid stamp duty. His Honour considered this an abuse of process. Faulks DCJ noted that the parties were unrepresented, and furthermore that should the marriage in fact break down, the parties would be precluded from seeking other orders for property settlement. His Honour also emphasised that any order made must be just and equitable, and that the material filed was inadequate to establish this, thus precluding him from making such a decision. The Full Court refused the appeal. However, their Honours concluded that the stamp duty payable was minimal and the fact that orders were made in relation to property did not mean that there was an abuse of process. They referred to the earlier Full Court decision in Gabel & Yardley,174 which had confirmed that orders for property settlement did not necessarily constitute a oneoff exercise. In fact, there may be a successive number of orders made until the relevant property is exhausted — hence there was no abuse of process. Applying Stanford, the Full Court held that a consideration of whether it is just and equitable to make the orders is required. According to their Honours, the consent of the parties was insufficient to meet the ‘just and equitable’ criterion. The court must exercise its independent discretion and must have principled reasons for interfering with parties’ existing legal and equitable interests. There was no evidence providing reasons for the making of these orders and the Full Court expressed concerns, given that the wife had not obtained independent legal advice. Under these circumstances, where the marriage was intact, the court refused to make an order providing for an outcome that could be achieved by other means. Recently, in Maxwell & Miltiadis,175 the Full Court was confronted with an appeal against orders made by consent on the basis that adequate reasons for making the orders were not provided and the orders were not just and equitable. The Full Court (Ainslie-Wallace, Murphy and Johns JJ) took the opportunity to provide some clarification regarding the obligation

of the court when making orders with the consent of the parties. In that case, the legal practitioners had confirmed their clients’ consent and the parties were in court when the orders were made. According to the court, there was ‘cogent evidence that each of the parties was “adequately informed”’.176 Thus the requirements set out in Harris v Caladine were complied with. Under such circumstances, any requirement for the judge to provide reasons for their decision is severely truncated as it is subsumed into the parties’ consent. Likewise, there was no issue of judicial accountability. [page 945]

Maintenance agreements under the FLA (1976–2000) 15.40 Until the commencement of Pt VIIIA in late 2000,177 the FLA contained provisions that enabled parties to enter into socalled ‘maintenance agreements’ under s 86 or s 87. That term was misleading as such agreements could (and predominantly did) deal with property matters as well as spousal maintenance.178 These agreements could only be entered into after a marriage had been celebrated. Notably, while maintenance agreements were usually concluded when a marriage broke down, estrangement was not a legal prerequisite under s 86.179 In theory, therefore, a maintenance agreement could have been used to enforce legal obligations of support during cohabitation. Between 1976 and 2000, the FLA provided for two types of maintenance agreement — ‘registered agreements’ under s 86 and ‘approved agreements’ (in substitution for some but not all rights under the FLA) under s 87. The principal distinction between the two was the degree of finality that s 87 agreements originally provided. Although s 86 provided a quicker and cheaper

mechanism, it was less popular in practice than the more conclusive s 87 agreement. Nevertheless, the popularity of s 87 agreements evaporated in 1988 following changes introduced by the Family Law Amendment Act 1987 (Cth), which reduced the degree of finality that those agreements could achieve. Indeed, consent orders (and not s 86 agreements) became the most common method of resolving property disputes: see 15.37. Changes introduced to the FLA in late 2000 prevented any further maintenance agreements being registered or approved under s 86 or s 87,180 But these changes did not affect the enforcement of maintenance agreements validly entered into before 27 December 2000. Further information about maintenance agreements under ss 86 and 87 of the FLA can be found in the earlier editions of this book.181

Financial agreements under the FLA (2000– present) 15.41 Throughout the 1980s and 1990s there were calls for the law to be changed to give binding effect to financial agreements made before, during or following the end of a marriage, subject to limited exceptions designed to prevent serious injustice.182 For example, in 1987 the Australian Law Reform Commission argued [page 946] that there was considerable community support for prenuptial and nuptial financial agreements for two main reasons: first, financial agreements provide married couples with a level of certainty as to what will happen if their marriage fails; and second, financial agreements can assist with the fallout from the high rates of failure of second marriages.183 Similarly, in 1992, the Joint Select Committee on Certain Aspects of the Operation and

Interpretation of the Family Law Act 1975184 advocated that the wider use of pre- and post-marriage financial agreements should be encouraged.185 The Family Law Reform Bill (No 2) 1995 (Cth) — which was introduced into the Senate late in 1995 but which subsequently lapsed due to the 1996 federal election — contained provisions for the recognition of prenuptial agreements. Pursuant to this Bill, agreements were to be promoted as the preferable means of resolving disputes, and orders by consent would not have required the court to be satisfied that their effect was just and equitable. 15.42 The suggested reforms finally became a reality with the commencement of the Family Law Amendment Act 2000 (Cth) on 27 December 2000.186 This Act amended the FLA in a number of ways, including the introduction of a new Pt VIIIA. Parties to a marriage may now enter into a written financial agreement that is binding on them and, where applicable, acts in substitution of their property and maintenance rights under Pt VIII of the FLA.187 Unlike 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 in relation to specified matters prior to the agreement’s execution.188 De facto couples in all jurisdictions (except Western Australia) can, since 1 March 2009 (1 July 2010 in South Australia), enter into binding financial agreements under the FLA. The relevant provisions are contained in Pt VIIIAB Div 4 (ss 90UA–90WA) and essentially mirror the provisions available to parties to a marriage under Pt VIIIA (ss 90A–90Q). Interestingly, s 90UE provides for the continued operation, under the FLA, of financial agreements ‘made under a non-referring State de facto financial law’. In other words, the FLA provisions apply in respect of a financial agreement (or an agreement terminating the original [page 947]

agreement) made before 1 March 2009 and can therefore be enforced, varied or set aside by a court exercising jurisdiction under the FLA. While this extension is logical, concerns arise because different considerations were applied when those financial agreements were entered into under state or territory legislation. 189

15.43 Since their inception, Pt VIIIA and now Pt VIIIAB have been the subject of a number of legislative amendments. These amendments have had particular impact on the interpretation of s 90G/90UJ: what makes a financial agreement binding. The Federal Government has signalled that further legislative reforms are imminent. In April 2015, the Attorney-General released an exposure draft of a Bill setting out proposed legislative amendments, as well as an explanatory consultation paper, and sought submissions regarding these.190 The Family Law Amendment (Financial Agreements and Other Measures) Bill 2015, detailing these amendments, has recently been introduced into parliament. The proposed amendments are discussed below: see 15.60. The FLA allows married and de facto couples to enter into financial agreements at various stages of the relationship. Part VIIIA — Married Couples

Description

Part VIIIAB — De Facto Couples

Section 90B

Before the marriage/de facto relationship

Section 90UB

Section 90C

During the marriage/de facto relationship (prior to separation)

Section 90UC

Section 90C

During the marriage but after separation (before divorce) After the breakdown of the de facto relationship

Section 90D

After divorce

Section 90UD

The legislation makes no distinction between an agreement made during marriage and one made after the marriage has broken down but before divorce.191 [page 948] The timing of the agreement will dictate the dynamics; one would assume that spouses would approach an agreement entered into before the marriage/relationship or before separation in a different way from one entered into following separation/breakdown of the relationship or divorce. A significant advantage of entering into a financial agreement is that, unlike consent orders, financial agreements do not require court approval and do not need to meet the ‘just and equitable’ criterion. They are thus not subject to court scrutiny (see the earlier discussion of consent orders at 15.37–15.39). Parties may enter into financial agreements for various reasons including: one party may have significant assets or liabilities that they wish to protect or quarantine; one party may anticipate receiving a substantial inheritance or gift; to protect the interests of children from a previous marriage or de facto relationship; to protect the rights of third parties, including trusts and companies; to ensure certainty in the event of marriage or relationship breakdown; to avoid the stress and expense of litigation in the event of marriage or relationship breakdown; and to give greater recognition to a particular contribution than would be given under the FLA.

Criticisms of financial agreements are similar to those encountered with Family Dispute Resolution (discussed in Chapter 2) and largely revolve around issues of power imbalances. In addition, such agreements often require parties to deal with unknown and unknowable future facts. Only one small empirical study has been conducted, and this was done shortly after the introduction of financial agreements.192 This 2002 study found that financial agreements were not being widely used. There were a number of practical problems, including a perception of loopholes and uncertainties in the law that were discouraging their use both from a practitioner and a client perspective.193 Over a decade later and despite a number of amendments, these same issues continue to plague the legislation. 15.44 The Full Court decision of Senior & Anderson194 distinguished between two forms of agreements: a financial agreement that is enforceable between the parties; and a binding financial agreement that ousts the jurisdiction of the Family Court. [page 949] Strickland J, with whom Murphy J agreed on this point, said: The Act in effect draws a distinction between agreements which are financial agreements (s 4, s 90B, s 90C, s 90D) and those financial agreements which are binding (s 90G). Financial agreements can, like any other agreement, govern the actions of the parties to them and bind the parties to obligations, but do not oust the jurisdiction of the court. Parties to an agreement that satisfies the definition of ‘financial agreement’ are bound by its terms (or not bound as the case may be), just as they would be bound (or not bound) by any other agreement (s 90KA).195

Requirements of financial agreements that are enforceable between the parties

15.45 A financial agreement that is enforceable between the parties sits at the core of every binding financial agreement which ousts the jurisdiction of the court. In order to satisfy the requirements for a financial agreement under Pt VIIIA or Pt VIIIAB of the FLA, the agreement: must be in writing;196 and must be expressed to be made under the relevant section of the FLA. A financial agreement may be entered into between: parties who are contemplating entering into a marriage/de facto relationship with each other;197 parties to a marriage/de facto relationship;198 or parties to a former marriage/de facto relationship which has broken down.199 In addition, a financial agreement may determine how, in the event of the breakdown of the marriage/de facto relationship, all (or any) of the property or financial resources of the parties are dealt with.200 A financial agreement may also deal with the maintenance payable between the parties to the marriage/de facto relationship.201 The legislation also requires that ‘at the time of the making of the agreement, the parties are not the spouse parties to any other binding agreement’.202 It is unclear whether this prohibition relates to: two agreements that cover exactly the same subject matter; for example, particular property; [page 950]

two agreements that cover the same type of subject matter; for example, real property and savings; or two agreements, regardless of whether they cover completely different subject matters; for example, spousal maintenance and real property. Until this issue is clarified, it is suggested that at any one time the same parties should only be parties to one financial agreement at a time, irrespective of the content. In the recent decision of Piper & Meuller,203 the parties were in a de facto relationship and engaged to be married when they entered into a single financial agreement that purported to be a financial agreement entered into pursuant to Pt VIIIA (married couples) and Pt VIIIAB (de facto couples). The marriage never eventuated. One of the grounds upon which Mr Piper applied to have the agreement set aside was that it impermissibly purported to be an agreement pursuant to both Pt VIIIA and Pt VIIIAB. The trial judge held that the agreement was a Pt VIIIAB financial agreement and was binding on the parties. In upholding the trial judge’s decision, the Full Court (Ryan and Aldridge JJ; Murphy J agreeing on this point) commented that there is no conflict between parties being in a de facto relationship and contemplating marriage: Section 90B(1)(aa) specifically prevents parties to a s 90B financial agreement from entering into another financial agreement to which s 90C (during a marriage) and s 90D (after divorce) apply. A similar scheme (that is before, during and after a de facto relationship) applies under Part VIIIAB by the application of s 90UB(1)(b). Importantly, however, the Part VIIIA exclusion contained in s 90B(1)(aa) does not preclude a Part VIIIAB financial agreement and vice versa. This is a powerful indication that the two financial agreements can exist concurrently and in the one document.204

Moreover, only one of these agreements could operate at any one time. The s 90UC agreement would cease to be binding if the parties to the agreement married and the s 90B agreement would operate in the event of the marriage breaking down. As the parties never married, the court found that the parties

had entered into an agreement while in a de facto relationship. The Full Court has therefore clarified that the same parties can enter into two financial agreements while in a de facto relationship: one in respect of the existing de facto relationship and the other in contemplation of marriage. Thus the wording seems to contemplate that parties can enter into a Pt VIIIA financial agreement (married couples) at the same time as a Pt VIIIAB financial agreement (de facto couples). Parties cannot vary an existing agreement and must replace the old agreement in its entirety. Parties may also terminate an earlier financial agreement either [page 951] by entering into a termination agreement or by inserting a provision in the new financial agreement terminating the earlier agreement.205 The requirements for a binding termination agreement are similar to those for a binding financial agreement (s 90J(2)/90UL(2)). In addition, where parties in a de facto relationship enter into a financial agreement, if those parties marry, the financial agreement covered by Pt VIIIAB (de facto couples) will automatically cease to be binding on the parties (s 90UJ(3)).

What may be included in a financial agreement 15.46 A financial agreement may cover all or only a portion of the property and financial resources of the parties, and may also cover spousal maintenance. If, for example, only property is included in a financial agreement, then (assuming it is binding) the court may make orders for spousal maintenance. The property covered does not necessarily need to be in existence at the time of making the agreement. Financial agreements may also deal with matters incidental and ancillary to the division of property,

financial resources and spousal maintenance,206 and may include child maintenance.207 In addition, for married couples only, such agreements may deal with ‘other matters’, but such provisions are of no force or effect until the marriage breaks down (s 90DB(2)). If child support arrangements are to be included in a financial agreement, then these arrangements must be contained in a ‘child support agreement’ that complies with the relevant provisions of the Child Support (Assessment) Act 1989 (Cth).208 Child support agreements are discussed in Chapter 11. Child support provisions in a financial agreement cease to have effect once an administrative assessment is made.209 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.210 This type of financial agreement is a ‘superannuation agreement’ for the purposes of Pt VIIIB of the FLA (which covers superannuation) and has effect only under that Part.211 Parties may also enter into [page 952] a ‘flag lifting’ agreement in the appropriate circumstances.212 Superannuation ‘payment flags’ are discussed at 15.8.

Spousal maintenance 15.47 A financial agreement may provide for the maintenance of the parties, including both periodic and lump sum maintenance. A maintenance provision will be void unless the agreement complies with s 90E/90UH: A provision of a financial agreement that relates to the maintenance of a party to the agreement or a child or children is void unless the provision specifies: (a) the party, or the child or children, for whose maintenance provision is made;

and (b) the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.

Anecdotally, as a result of the existence of this provision, it is common practice to include a nominal amount of maintenance for each party (eg $100) and provide for an offset, rather than simply to say that no maintenance will be payable or that the amount payable will be nil. Moreover, s 90F (and s 90UI, which is similarly worded) applies a further restriction in relation to spousal maintenance provisions: (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. (1A) 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. (2) To avoid doubt, a provision in an agreement made as mentioned in subsection 90C(1) or 90D(1) that provides for property or financial resources owned by a party to the agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be dealt with. (emphasis added)

The purpose of s 90F/90UI is to enable parties to obtain an order for spousal maintenance rather than be dependent on social welfare. It therefore prevents a person who is reliant on an income-tested pension from contracting out of their right to seek maintenance. [page 953] Although this version of s 90F only commenced on 17 December 2003,213 it applies retrospectively to all financial agreements entered into since the commencement of Pt VIIIA in late 2000.214 Where the parties are divorced or have made a

separation declaration at the time of entering into the agreement, it is clear when the agreement comes into effect. But if the parties are not separated (or not even married/in a de facto relationship) when they enter into the agreement, the question arises whether the agreement takes effect once the separation declaration is signed, or whether it takes effect immediately on entering into the agreement (see 15.48 for a discussion relating to the signing of a separation declaration). According to s 90DA/90UFA, a separation declaration relates only to the ‘property and financial resources of the parties’ and is thus not required to implement inter-spousal maintenance obligations.215 So far as spousal maintenance is concerned, for couples in a de facto relationship the position is clear cut and such provisions will only come into effect on the breakdown of the relationship (see the definition of ‘de facto financial cause’: 12.43). However, for married couples, a financial agreement that provides for maintenance during the marriage may take effect earlier. A 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.216 Consequently, a financial agreement may be useful in the event that the parties intend that spousal maintenance payments should continue after the death of the liable spouse. Of course, that result may not have been intended. If the liable party wants the spousal maintenance payments to end on his or her death, then it is suggested that a clause to that effect should be included in the financial agreement.

Other matters relating to financial agreements 15.48 As part of a major overhaul of bankruptcy and family laws in 2005 (see 15.61–15.67), Pt VIIIA was amended to require that in order for a financial agreement to be of force or effect, one of the spouses must execute a ‘separation declaration’. Section 90DA/90UF states that:

A financial agreement that is binding on the parties to the agreement to the extent that it deals with how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse

[page 954] parties…. are to be dealt is of no force or effect until a separation declaration is made.217

‘Separation’ has the same meaning as in s 48 of the FLA (in relation to divorce): see Chapter 6. This was a logical amendment to prevent cohabiting couples from taking advantage of financial agreements to rearrange their financial affairs ahead of an impending bankruptcy. The requirement for a separation declaration does not apply if the spouses are divorced or either or both of them die.218 In other words, this means that a financial agreement will have force and effect from the time of the divorce or death(s) in the case of a marriage (or death(s) only in the case of de facto relationships).219 The requirement for a signed separation declaration is limited to property and financial resources and does not apply to spousal maintenance: see 15.47. It is also relevant to note that s 90MP contains additional ‘separation declaration’ requirements applicable to superannuation agreements and that these appear to overlap with the general requirement now contained in s 90DA. The High Court in Stanford v Stanford220 recognised that orders altering property interests of the parties may be made in respect of an intact marriage: see 12.34. If the marriage is intact and the parties have entered into a financial agreement dealing with property matters or financial resources, it is suggested that the financial agreement will not be enforceable between them or binding on the court as the marriage is still intact and a separation declaration will not have been signed.221 However, so far as spousal maintenance is concerned for married couples (as against couples in a de facto relationship), depending on the terms of the

agreement, the obligation to pay maintenance may arise as soon as the financial agreement is entered into. Amendments introduced in 2009 allow third parties to be parties to financial agreements.222 This can be useful, for example, where the parties control a company which holds assets that are dealt with in the agreement, or where the financial affairs of the parties are intertwined with those of third parties, such as in the case of loans from parents. However, the legislation provides that a financial agreement that is binding on the parties to the agreement, to the extent to which it provides for a third party to contribute to the maintenance of a spouse party during the marriage, is of no force or effect.223 [page 955]

Setting aside a financial agreement 15.49 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 (s 90KA/90UN).224 In the decision of Kostres & Kostres,225 the Full Court (Bryant CJ, Boland and Jordan JJ) discussed the practical effect of s 90KA as follows: We accept that in determining whether the agreement is valid, enforceable or effective, the general law relating to contracts, as well as principles of equity, are to be applied. That must be done to give effect to the parties’ intentions at the time of the making of the agreement, and in the context of the statute.226

In attempts to set aside financial agreements, arguments incorporating common law and equitable remedies are frequently raised before the Family Court.227 For example, the doctrine of rectification has been argued on a number of occasions.228 In Fevia & Carmel-Fevia,229 the agreement signed by the wife was materially

different from that signed by the husband in that there was no schedule of assets attached to the document that the wife signed. The husband had failed to give the wife a copy of the agreement which he had signed. Murphy J refused to rectify the document to include the schedule of assets: Here, the inclusion, or exclusion, of specified property must be central to the intention of the parties. If the core intention of the parties is to exclude matters the subject of agreement from the operation of Part VIII, mutuality of intention about (relevantly) the specific property to be excluded is central to the true intention of the parties.230

However in Senior & Anderson,231 the Full Court held that the trial judge had correctly rectified an agreement that had been signed when the parties were divorced but referred to s 90C instead of s 90D: see 15.54 for further discussion of this case. [page 956] 15.50 In addition to the general powers granted in s 90KA/90UN, in accordance with s 90K(1)/90UM(1), a court may set aside a financial agreement (or a termination agreement) provided it is satisfied that one of the following situations exists:232 1. 2.

3.

The agreement was obtained by fraud (including nondisclosure of a material matter).233 Either party entered into the agreement for the purpose or for purposes that included defrauding or defeating a creditor or with reckless disregard to the interests of a creditor.234 Chapter 5 has explained that the FLA contemplates that a person may be married and simultaneously living in a de facto relationship or may be in more than one de facto relationship at a time. Section 90K permits the court to make an order setting aside a financial agreement if one party to the agreement intends to defraud or defeat the interests of a de

4.

facto or married spouse. In the case of married couples, the legislation states that the agreement can be set aside where either party entered into the financial agreement: (i) for the purpose or for purposes that included defrauding another person who is a party to a de facto relationship with one of the parties to the agreement; (ii) for the purpose of ‘defeating the interests of that other person in relation to any possible or pending application for an order under s 90SM [alteration of property], or a declaration under s 90SL [declaring interests in property], in relation to the de facto relationship’; or (iii) with reckless disregard for those interests. In relation to financial agreements entered into between parties in a de facto relationship, there is a similar provision: s 90UM. Section 90UM(1)(d) includes that a financial agreement may be set aside if it had has been entered into: (i) for the purpose of defrauding another person who is a party to a marriage with a party to the financial agreement; (ii) for the purpose of ‘defeating the interests of that other person in relation to any possible or pending application for an order under s 79 [alteration of property], or a declaration under s 78 [declaring interests in property], in relation to the marriage’; or (iii) with reckless disregard for those interests.235 The agreement is void, voidable or unenforceable.236 [page 957]

5.

In the circumstances that have arisen since the agreement was made, it is impracticable for the agreement or a part of the agreement to be carried out.237

6.

7.

Since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage/de facto relationship) and as a result of the change, the child or, if the applicant has ‘caring responsibility’ for the child, a party to the agreement will suffer hardship if the court does not set the agreement aside.238 In respect of the making of a financial agreement, a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable.239

Recently, in Weldon & Asher,240 the husband sought to have a financial agreement set aside on the grounds of undue influence, duress or unconscionable conduct. Thackray CJ found that although the husband had been under considerable pressure to sign the agreement before marriage, the husband was not subject to duress. The wife had at all times been upfront about the conditions for the continuation of the relationship and the possibility of marriage. She at no stage attempted to manipulate or deceive him. On the contrary, in fact, she had been brutally honest. Thus the husband’s claims that the wife had acted unconscionably failed.241 In addition, if the financial agreement deals with superannuation entitlements, there are two further reasons that a financial agreement may be set aside: first, if a payment ‘flag’ is operating under Pt VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part;242 and second, if the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Pt VIIIB.243 Superannuation and the operation of Pt VIIIB are discussed at 15.2–15.12. So far as de facto relationships are concerned, [page 958]

s 90UM(1)(k) provides an additional ground for setting aside a financial agreement that was made in a non-referring state. The relevance of common law and equitable principles to determining the validity and enforceability of financial agreements has recently been emphasised in the decision of Donald & Forsyth.244 The Full Court (May, Strickland and Ryan JJ) were called upon to determine the validity of a financial agreement. The court found that there had not been a repudiation of the agreement so that the wife was entitled to rescind it. In coming to this decision, the court was obliged not only to consider the law relating to rescission and repudiation, but also the law relating to breach of contract, including anticipatory breach and whether a particular term of the contract was an essential or a non-essential term of the contract. In a joint judgment, Strickland and Ryan JJ set out the principles to be applied when a party to a financial agreement has repudiated the contract so that the contract may be terminated by the other party.245 The extent of the power of the court pursuant to s 90K(3) — which allows the court to ‘make such order or orders … as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons’ — recently came under judicial scrutiny in Grainger & Bloomfield.246 The Full Court (Finn, Strickland and Hogan JJ) was prepared to say little more than that ‘the observations of the Full Court in Chemaisse can be read as cautioning against an over-expansive application of a provision such as … s 90K(3)’,247 and that the application of this provision will depend on the particular facts to which it is to be applied. In the present case, the facts were still to be determined and thus there was nothing more to say: see further, 15.66.

A binding financial agreement that ousts the

jurisdiction of the courts 15.51 Once it is established that the financial agreement is enforceable between the parties — that is, that all the formal requirements are met and there is no statutory ground to set the agreement aside — s 90G/90UJ sets out the requirements that must be complied with in order for a financial agreement to be regarded as binding on the courts. If a financial agreement is binding, then the jurisdiction of the Family Court is ousted/excluded in respect of the matters covered in the agreement (s 71A/90SA(1)). Moreover, a binding financial agreement may be enforced by the Family Court as if it were an order of the court. If a financial agreement is not binding and does not oust the jurisdiction of the court, it will [page 959] still be taken into account at the discretion of the court in determining the parties’ claims for property settlement/spousal maintenance. In the post-Stanford climate, it will be interesting to see the impact, if any, such an agreement will have on the ‘just and equitable’ requirement. 15.52 A financial agreement may be enforceable as between the parties, but in order to oust the jurisdiction of the courts, s 90G/90UJ in its current form requires: that the parties each be given independent legal advice; that the advice be provided by a legal practitioner; that the advice deal with the effect of the agreement on the rights of each party and the advantages and disadvantages of making the agreement; that the advice be provided prior to signing the agreement; and that a signed statement evidencing the advice that has been

given is provided by the legal practitioner to the party prior to or after signing. The signed statement does not need to be annexed to the agreement, but must be provided to the other party or their legal practitioner. (Prior to the amendments in 2010, the legislation required certificates of legal advice, but now only a signed statement is needed.) The legal practitioner must hold an Australian practising certificate.248 15.53 Since originally enacted in 2000, s 90G/90UJ has been the subject of two major amendments; the first taking effect on 14 January 2004249 and the second taking effect on 4 January 2010.250 These amendments, especially the transitional retrospective provisions, have created difficulties for determining the formalities that need to be complied with at different points in time, including in relation to the contents of the advice that must be provided and the requirements as to whether the advice must be recorded in a certificate or a statement executed by the relevant legal practitioner.251 These difficulties have arisen as a result of apparent inconsistencies in the relevant transitional provisions, which have led to confusion as to the version of s 90G/90UJ that is to be applied to agreements entered into both before the 2004 amendments and between the 2004 and 2010 amendments. In Wallace & Stelzer,252 the Full Court (Finn Strickland and Ryan JJ) discussed these difficulties. In relation to the contents of the advice, their Honours favoured an approach which recognises as valid agreements that complied with either the legislation that was in force when the agreement came into effect, or the [page 960] legislation as subsequently amended. In respect of the certificates or statements of legal advice, their Honours decided that the 2010

amendments were partially retrospective, in that different criteria would apply if the agreement was entered into between 2000 and 2004. For all financial agreements entered into on or after 14 January 2004, the current wording of s 90G applies.253 Moreover, in Wallace & Stelzer the Full Court found the retrospective nature of the amendments to be constitutionally valid.254 The High Court has refused to grant special leave to appeal this decision.255 15.54 In the 2008 case of Black v Black,256 the Full Court, relying on the words ‘if and only if’ which precede the various legislative criteria, determined that a strict interpretative approach is required when considering the validity of a financial agreement. Consequently, the Full Court stated: … we are of the view that strict compliance with the statutory requirements is necessary to oust the court’s jurisdiction to make adjustive orders under s 79. 257

The legislature responded to this strict approach by introducing changes to the FLA designed to make it possible for a financial agreement to be held binding despite errors being present. Section 90G(1A) was introduced into the FLA and states: A financial agreement is binding on the parties to the agreement if: (a) the agreement is signed by all parties; and (b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and (d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and (e) the agreement has not been terminated and has not been set aside by a court.

The amendments to s 90G were considered by the Full Court in Senior v Anderson.258 In this case, the parties divorced in January 2009 and six months [page 961]

later entered into a financial agreement. The agreement contained a number of errors including that it was incorrectly referred to as a ‘Section 90C Financial Agreement’ and that its operative provisions were wrongly expressed to be made pursuant to s 90C of the FLA. As the parties had divorced, the agreement should have been made under s 90D of the FLA. Another error related to the annexed solicitor’s certificates, which incorrectly referred to given names that were not those of the parties. After the agreement was signed, the wife sought to resile from it. She filed an application that sought, among other things, a declaration that the agreement was not a binding financial agreement within the meaning of s 90D and a consequent order that the agreement be set aside. While the trial judge (Young J) observed that the agreement was ‘poorly drawn’, he was nonetheless satisfied that each of the parties had received legal advice and that the parties and their solicitors had signed the agreement and the certificates respectively. Moreover, Young J found that the parties had intended to enter into a binding financial agreement pursuant to the Act which was intended to oust the jurisdiction of the court and prevent it from making orders effecting a property division. His Honour concluded that the errors in the agreement and certificates were ‘technical’ and found that the amendments to s 90G of the FLA provided relief against strict interpretation of the requirements of the Act so as to permit retrospective rectification of the agreement. Consequently, his Honour made a declaration that the agreement was a binding financial agreement pursuant to s 90D of the FLA and ordered that the agreement and the annexed solicitor’s certificates be rectified to accord with the provisions of s 90G. On appeal, a majority of the Full Court (Strickland and Murphy JJ, in separate judgments) found that Young J was in error as to his purported rectification of the solicitor’s certificates. As a consequence, the matter was remitted back to Young J to determine, among other things, whether the financial agreement could be declared binding pursuant to the court’s discretion under

s 90G(1A) and (1B) in spite of non-compliance with s 90G of the Act. In his judgment, Strickland J held that the remedy of rectification was not available to a court in order to ‘correct’ noncompliance with any of the requirements of s 90G.259 While it was open to the trial judge to rectify the agreement so as to correct the references to s 90C in the agreement itself (by replacing them with references to s 90D), the errors in the parties’ names in the solicitor’s certificates were fatal to the binding nature of the agreement and consequently not capable of rectification.260 His Honour held that as the relevant requirement of s 90G is the provision of legal advice to a ‘spouse party’ and a certification to that effect, compliance is ‘mandatory’.261 That said, Strickland J held that the question of the formation, validity and enforceability of a financial agreement can be determined [page 962] on normal contractual and equitable principles.262 While Murphy J agreed with the reasons of Strickland J, he disagreed with his Honour’s view that the transitional provisions contained in the 2009 amendments providing for retrospective application of the amendments were of no relevance to the appeal.263 15.55 The amendments to s 90G were further considered by the Full Court in the 2012 decision of Parker & Parker.264 In this case, the husband and his solicitor made a handwritten change to the relevant document after the wife and her solicitor had signed both it and the lawyer’s certificate. The amended document was then sent back to the wife’s solicitor with a request that the wife should initial the amendment, retain a copy and return the original to the husband’s solicitor. This was done, but no amendment was made to the lawyer’s certificate. The document was then returned to the husband’s solicitor. These events occurred in late 2004. The parties

separated nearly three years later and the wife disputed the validity of the ‘agreement’ on the basis that it did not comply with s 90G. The question for the court to decide was whether the wife was provided with the required advice from her solicitor following the amendment to the relevant clause, noting that the lawyer’s certificate had been signed before the amendment was made and was not updated. The trial judge (Strickland J) found that it was not open to him to set aside the agreement. That said, his Honour still declared that the financial agreement was not a binding financial agreement within the meaning of the Act. Consequently, neither party was precluded from pursuing an application for property settlement. The husband’s subsequent appeal was allowed (Coleman and May JJ; Murphy J dissenting) and the matter was remitted for rehearing. In his judgment Murphy J held: The amending legislation’s purpose is stated to be, in part, to prevent people who have made an informed decision to enter a financial agreement ‘later avoid[ing] or get[ting] out of the agreement on a mere technicality, resulting in court battles that the agreement was designed to prevent’. It would, to my mind, be a curious result of the legislation if the central remedial section in those amendments (ie s 90G(1A)) was defeated because of a failure in the form of the application. That is all the more so when it is considered that the issues to which s 90G(1), and s 90G(1A) in particular, relate, very frequently arise (as here) in the context of a s 79 application which is met by a responsive pleading that a financial agreement is binding and, as a result, Part VIII is rendered inapplicable to the matters to which the agreement pertains.265

[page 963] 15.56 At this point, the Full Court had made little headway in providing guidance as to the requirements under ss 90G and 90UJ and when they will be dispensed with pursuant to s 90G(1A)/90UJ(1A). However, since then the Full Court has handed down a number of decisions that have provided further clarity. One of the most important of these decisions is Hoult v Hoult,266 the salient facts of which are as follows. Shortly before marrying in

2004, the husband and wife executed a financial agreement in reliance upon s 90B to regulate their financial relationship. Upon their final separation in 2011, the wife commenced proceedings under Pt VIII and the husband relied on the agreement as a bar to the wife’s claim. The wife then applied to have the agreement set aside and, in the alternative, sought a declaration that the agreement was not binding. The trial judge (Murphy J) made a declaration that the financial agreement was not binding within the meaning of s 90G. He also made a further declaration that it would be unjust and inequitable within the meaning of s 90G(1A) (c) if the financial agreement was not binding on the parties, and that the financial agreement was binding pursuant to s 90G(1B).267 The Full Court considered two separate appeals against orders made by Murphy J, namely: 1.

2.

the first appeal, filed by the husband, against the declaration that the agreement was ‘not binding within the meaning of s 90G(1)(b)’; and the second appeal, filed by the wife, against the declaration that ‘within the meaning of s 90G(1A)(c) … it would be unjust and inequitable [if the agreement between the husband and wife] was not binding on them …’.

The Full Court (Thackray J in a separate judgment and Strickland and Ainslie-Wallace JJ in a joint judgment) agreed that the husband’s appeal should be upheld. This being the case, it was not strictly necessary for the court to consider the wife’s appeal. However, both judgments discussed the application of s 90G(1A) and although there are areas of disagreement between the judgments, the case provides some useful guidance on: the onus of proof; the content of the legal advice; and the exercise of the discretion and the content of the agreement.

15.57 The onus of proof: The party seeking to enforce the agreement carries the burden of proving that the agreement is binding. According to Thackray J: … the onus of establishing that an agreement is binding falls upon the party asserting that fact because the legislation provides that an agreement is binding

[page 964] ‘if, and only, if’ the prescribed matters are established. It follows that the party relying upon the agreement must establish the existence of all those matters, including the giving of the requisite legal advice to both parties.268

15.58 The content of the legal advice: If it is claimed that the agreement ought not to be binding because the person seeking to set it aside did not receive the required legal advice, a certificate signed by a solicitor stating that the required advice has been given provides prima facie evidence that the advice has in fact been given. It is then up to the party seeking to set the agreement aside to prove that this is incorrect. Moreover, all the judges agreed that if the required advice had not been given, it was possible for s 90G(1A)(c) to ‘cure’ the agreement. The question has been raised as to the quality of advice required to comply with s 90G/90UJ. In Wallace & Stelzer,269 the Full Court — referring to Hoult — made clear that ‘the only enquiry necessary is as to whether advice was given and not as to the content of the advice’. In the recent decision of Bilal v Omar,270 the Full Court (Bryant CJ, Murphy and Loughnan JJ) clarified the situation further by stating that the issue is not whether the advice was understood, but whether it was given. In this case, the trial judge (Henderson FM) held that a financial agreement was not binding on the basis that it failed to comply with s 90G(1)(b). Her Honour found that the wife did not understand her solicitor as he spoke a different Arabic dialect to her. The solicitor had sent the wife to an interpreter to explain the agreement, but Henderson FM found that the solicitor was unable to abrogate his responsibilities in this

manner. Hence the certificate that he signed was of no consequence. The Full Court found that the basis of her Honour’s decision ‘was not that advice of the type required had not been given, but that such advice as was given was not understood’ (original emphasis).271 Hence the wife had not been properly advised. The husband’s appeal was allowed and the matter was remitted for rehearing. In reaching this conclusion, the Full Court noted that during the course of the trial the wife had changed her evidence from not having understood the agreement to not having received advice — thus the case that the wife ultimately ran differed from that heard by the trial judge.272. In cases where there the financial agreement is not enforceable as between the parties, it is not possible to utilise s 90G(1A)/90UJ(1A) to cure the defect/s in the agreement. An agreement that is enforceable between the parties is thus a [page 965] prerequisite to an agreement that is binding on the court. In Lotta & Lotta273 the husband applied to have an agreement that the parties had entered into declared binding. It was common ground that neither party had obtained independent legal advice. The agreement did not comply with either s 90C or s 90G and thus was not a financial agreement enforceable between the parties nor a financial agreement binding on the court. Foster J made a point of saying that if the agreement had satisfied s 90C notwithstanding non-compliance with s 90G, then the husband’s actions of paying funds under the agreement would have assisted the court in determining whether it would have been unjust and inequitable for the agreement not to be declared binding. 15.59 The exercise of the discretion and the content of the agreement: In Hoult, all the judges agreed that while the Explanatory Memorandum to the amending legislation made

reference to ‘technical requirements’, the parameters of the legislation extended further. An example of a technical requirement is where the solicitor provided the required advice, but forgot to give the client a signed statement that they had done so. According to Strickland and Ainslie-Wallace JJ: … the most that can be gleaned [from prior case law] is that first, the fact that a party has not received the prescribed legal advice does not alone render s 90G(1A) inapplicable, and second, … the operation of the discretion in paragraph (c) is not confined to ‘technical’ breaches.274

Strickland and Ainslie-Wallace JJ also clarified that ‘the content of the bargain’, or terms of the agreement, was irrelevant to the determination of whether it was ‘unjust and inequitable’ for the agreement not to be binding. They held that the inquiry is better directed to ‘whether, given the nature and extent of the noncompliance with s 90G(1) requirements, it would be unjust and inequitable if the agreement was not binding’.275 While noting that there was no defined list of factors which would determine whether the ‘unjust and inequitable’ criterion would be met, their Honours held that a ‘preferred’ list of factors would include: The terms of the section, the nature of a financial agreement as a creature of the Act, and the place of Part VIIIA within the overall scheme of the Act. The nature and extent of the non-compliance with the requirements of s 90G(1). The facts and circumstances surrounding the making of the agreement including, in particular, if one of the parties has complied with all of the mandatory requirements necessary to render the agreement binding.

[page 966] How the parties have acted subsequently in relation to the agreement (bearing in mind that changes of circumstances cannot be considered).276

However, the parameters of the discretion were not clearly defined. Nowhere in the judgment was the nature of what must be considered clarified; nor did their Honours clarify the

circumstances in which a court will uphold an agreement notwithstanding that s 90G has not been strictly complied with. Strickland and Ainslie-Wallace JJ took a narrower view of the parameters of the discretion than Thackray J, who at least entertained the possibility (without reaching a concluded view) that it may be ‘appropriate to assess whether the terms of an agreement offend ordinary notions of fairness’.277 Strickland and Ainslie-Wallace JJ conclusively rejected taking into account the terms of the agreement in assessing the applicability of s 90G(1A), as the relevant circumstances were those ‘surrounding the making and performance of the agreement’ (original emphasis).278 Accordingly, the joint judgment rejected Thackray J’s assertion that: Although the Act now undoubtedly allows parties to enter into bad or grossly unfair bargains, it is perfectly consistent for the legislation to permit consideration of the fairness of the bargain (judged at the date of execution) in cases where the safeguards ins 90G(1) have not been met.279

The joint judgment instead suggested that: The point of the legislation is to allow the parties to decide what bargain they will strike, and provided the agreement complies with the requirements of s 90G(1) they are bound by what they agree upon. Significantly, in reaching agreement, there is no requirement that they meet any of the considerations contained in s 79 of the Act, and they can literally make the worst bargain possible, but still be bound by it.280

However, the entire bench agreed that the fact that parties may not receive a similar outcome under a binding financial agreement to that which they would have received if s 79 proceedings had been instituted is not a basis to set a binding financial agreement aside. Unjust and inequitable is not the same as ‘just and equitable’, as contained in s 79(2)/90SM(3).281 While recent decisions have provided some clarity regarding the legislative requirements, the devil remains in the detail. Residual concern exists regarding the relevance of the content of the bargain, what exactly is required to constitute

[page 967] ‘unjust and inequitable’, and the quality of the advice given. Understandably, practitioners remain reluctant to draft financial agreements.282

Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth) 15.60 The Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth) was introduced into the Senate on 25 November 2015. It proposes addressing uncertainties that have arisen ‘around the requirements for entering, interpreting and enforcing financial agreements’.283 Since it was originally enacted in 2000, s 90G — which specifies when a financial agreement is binding on the parties (and from 2009, s 90UJ for de facto couples) — has been the subject of two major amendments. The Family Law Amendment Act 2003 (Cth) and the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) have both changed the requirements for a financial agreement to be regarded as binding: see 15.53. The convoluted wording of the existing s 90G/90UJ has been further complicated by these two successive amendments and has resulted in differing interpretations of these sections. The proposed Bill intends to repeal the existing s 90G/90UJ and substitute new sections so as to ‘improve the clarity of the rules relating to when financial agreements are binding’.284 To this end, depending on the date when an agreement was entered into, the Bill distinguishes between three forms of s 90G/90UJ (with appropriate changes in dates to allow for agreements entered into between de facto couples): 1.

one version applying to financial agreements entered into between 27 December 2000 and 13 January 2004;

2. 3.

one version applying to financial agreements entered into between 14 January 2004 and 3 January 2010; and one version applying to financial agreements entered into on or after 4 January 2010.

The Bill specifically sets out the requirements regarding the contents of the statements or certificates of legal advice, which will essentially depend on the date when the financial agreement was entered into. It is intended that the proposed s 90G(1)/90UJ(1) will provide that a financial agreement or a termination agreement will be binding if it is signed by the parties and either all the conditions contained in the proposed s 90GA/90UJA are met or the court makes an order under the proposed new s 90GB/90UJB declaring it binding. The proposed s 90GA(2)/90UJA(2) states that a legal practitioner must [page 968] provide each spouse party with a signed statement of legal advice either before or after the agreement was signed, stating the practitioner provided that party with independent legal advice regarding the effect of the agreement on the rights of that party under the FLA (s 90GA(2)/90UJA(2)). In addition: this statement must be given to the other party or to their legal practitioner; in order to avoid parties disputing that they received appropriate legal advice, each party must sign a written acknowledgment that before signing the agreement, they were provided with independent legal advice regarding the effect of the agreement on their rights under the FLA (this may be done before or after signing the agreement); and

the acknowledgment must be given to the other spouse party or their legal practitioner. Importantly, the proposed s 90G(5)/90UJA(5) specifically state that in deciding whether the agreement is binding, the court is not to determine whether the legal advice has actually been given. In other words, the court is not to look behind the certificates and acknowledgments. The proposed s 90GB/90UJB provide that if all the relevant conditions are not met, the court ‘must’ make an order declaring the financial agreement binding if it is satisfied that it would be ‘unjust and inequitable if the agreement was not binding on the spouse parties’. The Bill also includes changes to the provisions regarding spousal maintenance. In particular, it will enable parties to specify the amount payable in maintenance as ‘nil’ (s 90E/90UH). In addition, the proposed amendments will allow spousal maintenance to end on the death of a party (s 90H/90UK) and, unless the agreement provides otherwise, ongoing spousal maintenance obligations will terminate in the event of the payee remarrying or entering into a de facto relationship (s 90HA/90UKA). The exact form of the amendments remains to be seen, but it is hoped that these amendments may meet the expectations of the drafters and go some way to clarifying this complex and confusing area of law.

Bankruptcy and the FLA Introduction: Becoming bankrupt in the context of family law proceedings 15.61 Bankruptcy creates particular problems in property disputes under the FLA. It can occur at any time during

cohabitation or following the end of a relationship. Apart from being an added complication to the negotiation and resolution of a property dispute, it may also impact upon the enforcement of financial agreements and court orders. [page 969] Once the property of the bankrupt party vests in the trustee in bankruptcy, the rights of the bankrupt are significantly curtailed. Section 79(11) of the FLA provides that if a party to property proceedings is either bankrupt at the start of property settlement proceedings or becomes bankrupt during the proceedings, the party’s trustee in bankruptcy may apply to be joined as a party. If this happens, s 79(12) provides that, except with the leave of the court,285 the bankrupt party is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to that party. As a result, where a party to property proceedings becomes a bankrupt, he or she can no longer play a very active role in settlement negotiations because the property is now vested in the trustee. Since the commencement of the FLA, there has been debate as to the precise extent to which bankruptcy captures and vests in the trustee certain rights of the bankrupt, not only regarding the rights to bring family law actions, but also in respect of choses in action and appeal rights. Notwithstanding this debate, it is clear that bankruptcy captures the property of the bankrupt and some of the bankrupt’s rights in respect of property. In the context of family law proceedings, a number of cases have held that the right to bring an action under s 79 remains with the bankrupt and does not vest in the trustee. It is a right in personam. Nevertheless, any proceeds recovered by the bankrupt may belong to the trustee in bankruptcy.286 Moreover, the Full Court of the Family Court has held that a bankrupt does not have standing to appeal against property settlement orders.287

Orders made under Pt VIIIB of the FLA (discussed at 15.3–15.12) may provide protection for the non-bankrupt spouse. In addition, it is possible that trust property may be categorised as ‘exempt property’. Although the Bankruptcy Act 1966 (Cth) does not provide a special exemption to protect the parties’ interest in the former matrimonial home (which is usually the most significant asset of the relationship), the non-bankrupt spouse may be able to establish an equitable remedy.

Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) 15.62 The Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) introduced some significant changes to the FLA. Property proceedings may now be initiated or continued by the non-bankrupt spouse against the trustee in [page 970] bankruptcy of the bankrupt spouse, but only in relation to vested bankruptcy property, provided such proceedings arise out of the relationship. The jurisdiction granted enables trustees in bankruptcy to join proceedings for the purposes of resisting claims by the non-bankrupt spouse to vested bankruptcy property, but does not expressly provide for increasing or enlarging the vested bankruptcy property using the FLA. There is nothing in the amending legislation that altered the trustee’s inability to bring an application for property settlement under s 79/90SM of the FLA.288 A trustee in bankruptcy therefore cannot be an applicant under the FLA for substantive property settlement orders, even though he or she may be sued as a respondent. Nevertheless, there is still a limited scope for a trustee in bankruptcy to be involved as an applicant in family law

proceedings such as setting aside s 79/90SM orders pursuant to s 79A/90SN. 15.63 Section 75(2) of the FLA was also amended by the Bankruptcy and Family Law Legislation Amendment Act to insert the new para (ha). This provides for the court, before making any orders adjusting the interests of the bankrupt estate in respect of vested bankruptcy property, to consider ‘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’. Section 90SF(3)(i) is in similar terms in relation to a relevant de facto relationship. In addition, the court has, under s 79(1)(b)/90SM(1)(b), the discretion to alter the interests of the ‘bankruptcy trustee in the vested bankruptcy property’. In doing so, the court will consider contributions and the s 75(2)/90SF(3) factors. When the court examines s 75(2)(ha)/90SF(3)(i), it will look at the interests of creditors and balance them against those of the family. Neither the trustee nor the non-bankrupt party has priority. One matter that will need to be considered in the FLA context is the situation where there are insufficient assets in the bankrupt estate to make a distribution to unsecured creditors. Arguably, there is nothing for the court to take into account, as the making of property or maintenance orders will not have any ‘effect’ on the creditor’s ability to recover a debt. In the absence of a judicial decision to the contrary, this issue remains open. 15.64 There have been a number of relevant decisions since the amendments commenced. In the 2009 case of Commissioner of Taxation v Worsnop,289 the Commissioner of Taxation was granted leave to intervene in proceedings commenced by the wife to protect a significant tax liability owed by the husband. The trial judge (Rose J) found that the only substantial asset of the parties was the former matrimonial home, worth $4,750,000. The tax liability of the husband, including interest and penalties, was $12,031,124. A company controlled by the husband also had a tax liability of $421,756. Rose J ordered that the former

[page 971] matrimonial home be sold and that the net proceeds be divided equally between the wife and the Commissioner. On appeal, the Commissioner argued that, as both parties to the marriage received the benefit of the monies upon which tax was unpaid, in particular in respect of the purchase of the former matrimonial home, then either as a matter of principle the Commissioner should receive all of that property towards the debt or, on the facts of this case, any other result would be an error of discretion. The Full Court (Bryant CJ, Warnick and Cronin JJ) disagreed. Their Honours stated that ‘altering the interests of the parties to the marriage in the property does not mean that an intervening third party creditor acquires by intervention some rights based on s 79(2) for a just and equitable remedy, that are additional to the creditor’s other rights at law’.290 Neither s 79(2) nor s 75(2)(ha) has the result that the creditor has some opportunity, on the basis of justice and equity, of improving the position that the creditor would have been in had he or she pursued the debtor party alone.291 15.65 Similarly, in Trustee of the Property of Lemnos v Lemnos,292 the trustee of the bankrupt husband appealed against orders that the proceeds of the sale of the former matrimonial home be divided equally between the trustee and the wife. In lieu of those orders, the trustee sought that the wife’s property application be dismissed, or in the alternative that an order be made for a lump sum in favour of the wife that would then be provable in the bankrupt estate. On appeal, the Full Court (Coleman J, with Thackray and Ryan JJ agreeing on this aspect) reiterated that the effect of the 2005 amendments to the FLA and the Bankruptcy Act 1966 (Cth) ‘is that the interests of unsecured creditors do not automatically prevail over the interests of the non-bankrupt spouse and that the legislation requires the court to balance their competing claims in the exercise of the wide discretion conferred

by s 79’.293 The appeal nonetheless succeeded because the Full Court found that the outcome was outside the range of reasonable discretion. The error in the exercise of the discretion may well have been the result of the trial judge having given disproportionate weight to the wife’s lack of complicity in the husband’s ‘taxation indiscretions’ and having given inadequate weight to the fact that the wife had benefited from those indiscretions.294 15.66 More recently, in Grainger & Bloomfield295 (also discussed at 15.50), the Full Court296 confirmed that, despite a creditor being unable to commence proceedings under s 79 of the FLA, when a party to a financial agreement has become bankrupt, [page 972] a creditor of the bankrupt party has standing to apply to set aside a financial agreement under s 90K(1)(aa)/90UM(1)(b). In that case, the debtor party entered into a financial agreement with her husband after becoming a debtor in a state Supreme Court matter but before the relevant creditor’s petition had been filed and bankruptcy declared. 15.67 Nevertheless, it is also worth noting the 2013 decision of Yarwood v Shore,297 where a party to a de facto relationship became bankrupt during the course of the proceedings. While the trustee in bankruptcy had received notice of the proceedings, no action was taken to intervene. Given the circumstances the trial judge (Scarlett J) observed that the court had no power to make any orders concerning the relevant property and found that the application should therefore be discontinued.298

Setting aside property orders

Introduction 15.68 Property orders are characterised by a high degree of finality. Once final orders have been made under s 79/90SM, the only way an order may be altered is through the appeal process or through an application applying to vary or set aside an existing order pursuant to s 79A/90SN.299 An application pursuant to s 79A/90SN seeking to set aside existing property orders is an interlocutory application, and leave to appeal against such orders is required.300 In the 1979 case of Taylor v Taylor,301 the High Court held that the power of variation in s 83, which relates to spousal maintenance orders, has no application in relation to a property order made under s 79.302 Final property orders can only be set aside on the strictly limited grounds set out in s 79A/90SN and, in general, the Family Court has given that section a restrictive interpretation.303 Even if one of the grounds is made out, the court still retains discretion as to whether to set aside the orders.304 The applicant bears the onus of establishing that the discretion should be exercised.305 [page 973] 15.69 A mere change in the parties’ circumstances will not justify an order being set aside. Section 79A(1) provides as follows: Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that — (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or (b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or (c) a person has defaulted in carrying out an obligation imposed on him by the

other and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or (e) 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;

In respect of de facto couples, s 90SN is similarly worded. The court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under s 79/90SM in substitution for the order so set aside.

Miscarriage of justice 15.70 In the 1995 case of Marriage of Patching,306 the Full Court explained that, in the context of an application under s 79A(1)(a), the judicial process under s 79A involves four steps: … namely whether there had been a suppression of evidence or ‘other circumstance’ as alleged by the husband, whether that amounted to a ‘miscarriage of justice’, whether the court, in its discretion, should ‘vary the order or set the order aside’ and whether it should make another order under s 79: see, for example, McIntyre (1994) FLC ¶92-468. Recent decisions of the Full Court have emphasised the independent significance of the exercise of the discretion which

[page 974] s 79A gives: see Prowse (1994) 18 Fam LR 346; (1995) FLC ¶92-557 and Morrison (1994) 18 Fam LR 519; (1995) FLC ¶92-573.307

In the 1994 case of Marriage of Morrison,308 the Full Court emphasised that once a miscarriage of justice within s 79A is

established, it is not axiomatic that an application to set aside will succeed.309 Similarly, in Marriage of Prowse310 the Full Court said: If that were so, there would appear to be no scope for any exercise of discretion adverse to the applicant under s 79A once a ‘miscarriage of justice’ within the section has been established. But the legislature clearly gives the court such a discretion, and it follows that what the legislature has given the court cannot take away.311 Interestingly, in the reported case law under s 79A, dismissed applications predominate.312

Of the various grounds set out in s 79A(1), para (a) — ‘miscarriage of justice’ — has attracted the most judicial interpretation. For example, in Korsky & Bright (No 2)313 the court held that an unjust order will not necessarily mean there has been a miscarriage of justice, and in Lowe & Harrington,314 the court held that a unilateral mistake will not generally amount to a miscarriage of justice unless the other party knew of and took advantage of the mistake. In the 1990 case of Clifton & Stuart,315 the wife claimed a miscarriage of justice by reason of the unprofessional conduct and neglect of her solicitor. The Full Court (Barblett DCJ, Nygh and Maxwell JJ) first determined that the expression ‘any other circumstance’ appearing in s 79A should not be read as ejusdem generis with fraud, duress, the suppression of evidence and the giving of false evidence;316 there should nevertheless still be a circumstance that created a miscarriage of justice.317 Second, their Honours interpreted ‘justice’ as referring to the integrity of [page 975] the legal process.318 The ‘miscarriage of justice’ must arise out of the legal process; incompetence of a legal representative, unless equivalent to no representation, does not of itself affect the judicial process.319 This view was reaffirmed in the 2002 case of Marriage of Prior.320 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); second, she had been unable to understand the financial evidence led by the husband and had not had professional assistance to do so; and third, 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 (Nicholson CJ, Buckley and Kay JJ) dismissed the appeal. In relation to the first argument, the Full Court, while sympathetic to the difficulties facing unrepresented parties, held: We do not accept that it is the law that lack of legal representation of itself can be sufficient to establish that a miscarriage of justice has occurred. Recent years have seen increasing numbers of litigants appearing unrepresented in this court … This court has always encouraged the resolution by parties of disputes, particularly in relation to issues of property, as this one is, and it would be entirely unsatisfactory for it to adopt a principle that would lead to such settlements being set aside, merely because of lack of legal representation. This would remove all certainty from the legal process, and leave the other party to such agreements in a totally unsatisfactory situation … We do not think that the principle laid down by the Full Court in Clifton and Stuart, that the incompetence of a legal representative may constitute a miscarriage of justice if the representation was so bad as to be the equivalent of no representation at all, assists the wife in this case. We agree with Holden J, that this situation is to be distinguished from the situation where a litigant in person chooses to appear unrepresented, since in the case of incompetent representation, a miscarriage of justice may well result from the litigant accepting the incompetent advice, in the belief that it was professional advice properly tendered.321

In relation to the second argument, the Full Court upheld the findings of the trial judge (Holden J) and held that the wife, given the circumstances, could not rely on her inability to understand the financial reports for five reasons: 1.

she had previously retained legal representation and offered no explanation as to why she had dispensed with it;322 [page 976]

2. 3. 4. 5.

she had made no complaint at the time about this;323 she had made no attempt to request an adjournment;324 she was aware of the trial judge’s concerns about the contents of those reports;325 and without explanation, she put forward no valuation evidence of her own.326 In relation to the third argument their Honours held:

Again, as Holden J pointed out, she made no complaint … of being subjected to pressure of the type described by her, and it was clear that she was not suggesting that she consented to the orders under duress. In the circumstances therefore, we think that this argument cannot succeed. No doubt pressure is often applied in the course of negotiations to settle a matter. Pressure of itself cannot be said to produce a miscarriage of justice, particularly when it is not asserted that it amounted to duress. It could, in our view, only be relevant if it was of such a nature as to have the effect of vitiating a party’s consent to enter into the agreement in question. No doubt counsel and solicitors have to exercise care when negotiating with an unrepresented party but this does not mean that they are not entitled to forcefully advance reasons why that party should settle.327

In the 1996 case of Elliott & Wilcox,328 the Full Court held that the phrase ‘any other circumstance’ in s 79A(1)(a) is not to be construed narrowly and includes procedural irregularities occurring in the course of the proceedings.329 15.71 Section 79A(1)(a) was amended in late 2000330 to include the ‘failure to disclose relevant information’. Arguably, this captures conduct that falls short of the ‘suppression of evidence’ or ‘the giving of false evidence’. Nevertheless, even prior to this amendment, the Family Court had determined that s 79A(1)(a) (and now 90SN(1)(a)) raises a duty of disclosure on parties in financial proceedings. In the 1993 case of Marriage of Suiker331 the Full Court stated that full and frank disclosure of financial matters between parties is an essential element of the FLA and the process of the court.332

Moreover, their Honours held that if a party’s consent is not informed but is based on misleading or inadequate information [page 977] provided by the other side, that may amount to a miscarriage of justice either by reason of ‘suppression of evidence’ or by reason of ‘any other circumstance’.333 However, more recently in Ebner & Pappas,334 the Full Court (May, Ainslie-Wallace and Aldridge JJ) upheld the decision of Stevenson J dismissing the husband’s application to vary consent orders. According to the Full Court, Stevenson J had correctly applied the test in s 79A(1)(a), which not only requires a suppression of evidence that includes failure to disclose relevant information, but also results in a miscarriage of justice because of the suppression. In this case, the husband claimed that the wife had failed to disclose evidence relating to her financial circumstances. The trial judge concluded that the husband was aware of the wife’s assets from earlier disclosure, and had evidence as to their value. There could not therefore be a miscarriage of justice on the basis of non-disclosure. Thus it seems as if nondisclosure in itself is insufficient and must result in an actual miscarriage of justice.

Impracticability 15.72 The word ‘impracticable’ in s 79A(1)(b)/90SN(1)(b) has been the subject of judicial comment in a number of cases. It requires more than mere enforcement difficulties.335 In the 1983 case of Parker & Parker,336 Nygh J commented that ‘impracticability is not a term of art, as would be the legal doctrine of frustration’, but rather ‘a question of fact and degree in each case’.337 This ground is similar, but not identical, to the contractual doctrine of frustration.338

In the 1984 case of Marriage of Rohde,339 Gee J referred to the Shorter Oxford Dictionary, which describes ‘impracticable’ as ‘not practicable’, ‘that cannot be carried out or done’, ‘practically impossible’, ‘unmanageable’ or ‘intractable’.340 Although ‘impracticable’ does not mean ‘impossible’, the fact that an order has become more ‘onerous’ to perform is not sufficient. This view was supported by Kay J in the 1991 case of Marriage of La Rocca341 and by Moss J in the 1994 case of Franklin & McLeod.342 The Full Court (Ellis, Lindenmayer and Joske JJ) was given the opportunity to review these single judge decisions in the 1998 case of Marriage of Cawthorn.343 [page 978] Their Honours agreed that the relevant provision (indeed s 79A generally) should be construed strictly344 and held that: … a party cannot successfully seek an order pursuant to s 79A(1) as a result of that party’s own default unless such default was due to circumstances quite beyond that party’s control. This rests firstly upon the well established principle of law that no one should profit by their own wrong doing. This principle clearly embraces the obligation to carry out the provisions of a court order. Secondly, it would normally not be just and equitable to grant relief under s 79A(1) in those circumstances … It is in this context that we briefly revisit the doctrine of frustration and observe that a party cannot rely upon what has been termed ‘self-induced frustration’: see Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] AC 524; Bank Line Ltd v Arthur Capell and Co [1919] AC 435. It has not been shown that the trial judge erred in not setting aside [the relevant] order.345

Default 15.73 Section 79A(1)(c)/90SN(1)(c) of the FLA, which appears relatively straightforward, was also the subject of comment by the Full Court in Marriage of Cawthorn. Their Honours held that to obtain relief under s 79A(1)(c), the applicant ‘must come to equity with clean hands’ and must also establish to the court that his or

her cause is ‘just and equitable’.346 An example is the 1990 case of Marriage of Monticone.347 In that case, the husband was required to pay the wife a substantial sum of money representing her interest in the former matrimonial home within a specified time limit, or the home was to be sold and the proceeds equally divided. The husband was only able to pay the wife around two-thirds of the moneys owed; he attempted to pay the balance, but experienced financing difficulties. A couple of months passed and the wife commenced enforcement proceedings pursuant to the default provision contained in the order. The husband cross-applied pursuant to s 79A(1)(c) seeking that the default provision be set aside, claiming he was now able to pay the balance to the wife. The Full Court (Murray, Nygh and Bell JJ) agreed to set aside the default clause, no doubt influenced by the fact that the balance of the moneys were now available to be paid to the wife, and there was evidence that she was aware of this at the time the enforcement proceedings were commenced.348 After noting that the husband had paid most of the money due, the court was satisfied that the delay in obtaining the balance was not due to the husband’s fault, and more importantly, when considering the ‘just and equitable’ factor, the wife [page 979] could not point to any hardship.349 By contrast, the statutory relief was denied in Cawthorn because the Full Court, in agreeing with the trial judge (Lawrie J), found that the appellant (unlike the husband in Monticone) had made no effort to fulfil his obligations under the orders beyond his initial payment.350

Exceptional circumstances relating to the care, welfare and development of a child

15.74 For the purposes of the ground in ss 79A(1)(d) and 90SN(1)(d), a person has caring responsibility for a child if the person is a parent of the child with whom the child lives; or a parenting order provides that the child is to live with the person; or the person has parental responsibility for the child (s 79A(1AA)/90SN(3)). The intention behind s 79A(1)(d)/90SN(1)(d) appears straightforward; however, in its application, determining what is ‘exceptional’ can be difficult. An early example of its operation is the 1991 case of Marriage of Sandrk.351 In May 1989, an order was made awarding the wife a 35 per cent interest in the former matrimonial home. The assessment was made on the basis of contribution factors (30 per cent) and s 75(2) factors (5 per cent), the latter reflecting her care and control of the parties’ two sons (then aged nine and seven). Unexpectedly, and within four months of the property order, the children decided to leave their mother and live with their father. The husband then sought to set aside the property order under s 79A(1)(d). The court (Gee J) first held that the occurrence of a change in the care responsibility for the children after the making of a s 79 property order was ‘not in itself an unusual circumstance which justified an order under s 79A’.352 Nevertheless, his Honour held that the relevant provision did apply on the facts of this case. His Honour stated that the children had ‘voted with their feet’ and that: Such events were not within the contemplation of the parties. Such events were of an extraordinary nature. Such events were not contributed to, so far as can be adjudged on the evidence, in the sense of consciously creating the situation, by either party, least of all the husband who was the recipient of their care and control.353

His Honour was satisfied, on the facts, that the husband and the children would suffer serious hardship if the s 79 order stood, and consequently varied the property order.354 [page 980]

This case suggests that for a change in children’s living arrangements to form the basis of a successful application under s 79A(1)(d), it must not have been expected at the time the order was made and financial hardship must ensue. Thus, the mere fact of a change in care after the making of a property order is not in and of itself sufficient, as this is not necessarily ‘exceptional’. The Full Court decisions in Simpson & Hamlin355 and Yousseff & Youseff356 make clear that the word ‘exceptional’ encompasses, but is not limited to, circumstances that cannot reasonably have been expected to have arisen; it is a broad inquiry and a matter of fact and degree. However, the court should not be quick to vary orders based on a change of care, as the vicissitudes of life very often result in such circumstances. In effect, the court has confirmed that the word ‘exceptional’ is intended to close the floodgates of (re)litigation to all but the most unusual cases.

Consent to vary 15.75

In accordance with s 79A(1A)/90SN(2):

A court may, on application by a person affected by an order made by a court under section 79 [/90SM] in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 [/90SM] in substitution for the order so set aside.

In Gitane & Velacruz357 the Full Court, in the context of varying orders made by consent (s 79A(1A)), suggested a two-step approach to determining whether an order should be varied. First, the court should consider whether an appropriate ground to vary orders has been made out (in this case consent); and second, the court should consider all the discretionary factors, including whether the order should be varied and, if appropriate, what new order should be made.358 The consent of the parties to set aside s 79 orders under this ground can be implied by their conduct. For example, reconciliation and circumstances where the parties conduct their

finances in a manner inconsistent with the orders may constitute implied consent to setting aside the orders. This is a matter of fact and degree to be determined in the individual circumstances of the case.359 [page 981] Furthermore, the relevant consent is consent to vary or set aside the orders, not agreement as to the proposed orders to be made in their place.360

Varying orders made with the consent of the parties 15.76 The making of orders with the consent of the parties is discussed at 15.37–15.39. The present section deals with the circumstances under which the court may vary such orders. It is possible for orders made with the consent of the parties to be made without the parties being legally represented. The case of Prior361 (discussed at 15.70) indicates that lack of legal representation will not in itself establish that a miscarriage of justice has occurred. Similarly, in Gebert & Gebert,362 the husband agreed to consent orders that were unfavourable to him (less than 10 per cent of the asset pool, when his probable entitlement was about 40 per cent) on the basis that this would clearly indicate to the wife that the marriage was over. The husband had deliberately not sought legal advice, notwithstanding that the wife’s solicitor had advised him to do so. He subsequently regretted this decision and unsuccessfully applied to the court to vary the orders on the basis that there was a miscarriage of justice arising from the circumstances surrounding the making of the orders. In the more recent decision of Whistler & Whistler,363 it was agreed that the amount payable to the wife by way of property

settlement would be paid in three instalments. The Full Court (May, Ainslee-Wallace and Murphy JJ) inferred from evidence that the consent orders incorrectly stated that the final instalment was to be paid to the wife eight years after the first payment rather than five years after the first payment. Moreover, this had occurred due to a mistake of the wife’s barrister and the husband was aware of this mistake, had taken advantage of the error, and had failed to alert the wife. The Full Court found that there had been a ‘miscarriage of justice’ arising out of ‘any other circumstance’ and varied the consent orders to reflect that the final payment was due five years after the first payment.364 [page 982]

Conclusion 15.77 This chapter has dealt with some of the more important specific issues that arise before the Family Courts when dealing with financial matters. It is not intended that the chapter deal comprehensively with the various interesting and diverse issues that come before the Family Courts, but it is hoped that, in the next edition of this book, the chapter will cover additional issues such as anti-suit injunctions.

1.

Australian Law Reform Commission (ALRC), Report No 69, Part II: Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, [15.28]. ALRC reports may be accessed via the ALRC website (www.alrc.gov.au) and the AustLII website (www.austlii.edu.au) (accessed 4 December 2015). See also Kristie Dunn, ‘Splitting the Difference: Superannuation, Equality and Family Law’ (1998) 12 Australian Journal of Family Law 214.

2.

Ross Clare, Superannuation Account Balances by Age and Gender, Report, The Association of Superannuation Funds of Australia Limited, Sydney, December 2015, www.superannuation.asn.au/policy/reports (accessed 13 February 2016). See also John Dewar, Grania Sheehan and Jody Hughes, Superannuation and Divorce in Australia, Working Paper No 18, Australian Institute of Family Studies, April 1999.

3.

4. 5. 6.

7. 8.

9.

Lixia Qu et al, Post Separation Parenting, Property and Relationship Dynamics after Five Years, Australian Institute of Family Studies, Melbourne, 2014, p 94. This Act commenced on 28 December 2002. The court must have jurisdiction pursuant to Pt VIIIAB. In 2006, Western Australia enacted the Commonwealth Powers (De Facto Relationships) Act, which refers state power to the Commonwealth over certain superannuation matters arising out of the breakdown of de facto relationships. The Federal Government has not accepted this referral of power. As a consequence, parties to de facto relationships in Western Australia are unable to split their superannuation as part of a property settlement. Crapp & Crapp (1979) 5 Fam LR 47; FLC ¶90-615; Bailey & Bailey (1978) FLC ¶90424; Coulter & Coulter (1990) 13 Fam LR 421; FLC ¶92-104. See Jenner & Jenner (1983) 9 Fam LR 549; (1984) FLC ¶91-544; Prestwitch & Prestwitch (1984) 9 Fam LR 1069; FLC ¶91-569; Wilkinson-Beards & Wilkinson-Beards (1985) FLC ¶91-647; Webber & Webber (1985) 10 Fam LR 505; FLC ¶91-648; Hauff & Hauff (1986) FLC ¶91-747; West & Green (1991) 16 Fam LR 811. Further information about the move towards the reform of superannuation during the 1980s and 1990s can be found in the earlier editions of this book: see, for example, Lisa Young and Geoffrey Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [14.29]–[14.30].

10. 11.

(2003) 30 Fam LR 355; FLC ¶93-143 at [71], [80]. Superannuation Industry (Supervision) Regulations 1994 (Cth) regs 6.01(5)(a), 6.01(5A).

12. 13.

Ibid reg 6.01(2). Ibid Sch 1.

14. 15.

Ibid reg 1.03AB. Family Law (Superannuation) Regulations 2001 (Cth) reg 8.

16. 17.

Craig & Rowlands (2013) 49 Fam LR 136; FLC ¶93-535. Marriage of Coghlan (2005) 33 Fam LR 414; FLC ¶93-220 at [68].

18.

FLA s 90MS.

19.

FLA ss 90MT, 90MU.

20. 21.

FLA s 90MR. FLA s 90MZD.

22. 23.

(2005) 33 Fam LR 414; FLC ¶93-220. FLA s 90MT(1)(a), (b).

24. 25.

Guthrie & Rushton [2009] FamCA 1144 at [27]. Van Ballekom & Kelly (2005) 34 Fam LR 1; FLC ¶93-233.

26. 27.

[2015] FamCA 1182. FLA s 90MU(1).

28. 29.

FLA s 90MU(2). FLA s 90MC.

30. 31.

(2003) 30 Fam LR 355; FLC ¶93-143. (2003) FLC ¶93-143 at [30].

32. 33.

Ibid at [75]. (2005) 33 Fam LR 414; FLC ¶93-220.

34. 35.

Per Bryant CJ, Finn and Coleman JJ; Warnick and O’Ryan JJ agreeing in the result, but disagreeing in part as to the reasoning. (2005) 33 Fam LR 414; FLC ¶93-220 at [40].

36. 37.

(2005) FLC ¶93-220 at [65]. Ibid at [67].

38. 39.

Ibid at [68]. Ibid at [66].

40. 41.

Hickey & Hickey (2003) 30 Fam LR 355; FLC ¶93-143; Marriage of Coghlan (2005) 33 Fam LR 414; FLC ¶93-220. FLA s 79A(1)(b).

42. 43.

Doherty & Doherty (2006) FLC ¶93-256; [2006] FamCA 199. See, for example, Linch & Linch [2014] FamCAFC 69.

44. 45.

(2006) 37 Fam LR 150; FLC ¶93-281. [2015] FamCA 493.

46. 47.

(2012) 47 Fam LR 626; [2012] FamCAFC 132. (2013) 49 Fam LR 136; FLC ¶93-535.

48.

Grania Sheehan, April Chrzanowski and John Dewar, ‘Superannuation and Divorce in Australia: An Evaluation of the Post-reform Practice and Settlement Outcomes’ (2008) 22 International Journal of Law Policy and Family 206. (2013) 50 Fam LR 517; FLC ¶93-567.

49. 50. 51.

FLA s 114(1)(e). FLA s 114(1)(f): see Mullane & Mullane (1983) 158 CLR 436; 8 Fam LR 777; FLC ¶91303, where the High Court held that an injunction allowing one spouse sole occupation of the former matrimonial home does not alter property interests and thus does not prevent an application being made for property settlement.

52. 53.

(1979) 141 CLR 526; 5 Fam LR 1; FLC ¶90-616. Rutherford & Rutherford (1991) FLC ¶92-255.

54.

Recently, in Teh & Muir [2015] FamCAFC 224, where interlocutory orders were made freezing the proceeds from the sale of a property, the Full Court upheld a decision of the trial judge to preserve assets pending the determination of whether there was a binding financial agreement or whether the parties were in fact in a de facto relationship. See the comments of the Full Court in Sieling & Sieling (1979) 4 Fam LR 713 at 727– 8; FLC ¶90-627 per Evatt CJ and Marshall JJ. See also Hughes & Hughes (1984) 9 Fam LR 610; FLC ¶91-549.

55.

56. 57.

(1989) 13 Fam LR 397; FLC ¶92-050. Blueseas Investment Pty Ltd v Mitchell & McGillivray (1999) 25 Fam LR 65; FLC ¶92856.

58. 59.

Stowe & Stowe (1980) 6 Fam LR 757; (1981) FLC ¶91-027. Sieling & Sieling (1979) 4 Fam LR 713; FLC ¶90-627.

60. 61.

Martiniello & Martiniello (1981) 7 Fam LR 299; FLC ¶91-050; but see generally, Grattan & Grattan (No 6) [2014] FamCA 1118. (2006) 36 Fam LR 454; (2006) FLC ¶93-293.

62. 63.

(1999) 27 Fam LR 63; (2000) FLC ¶93-052. Mullen & De Bry (2007) 36 Fam LR 454; (2006) FLC ¶93-293 at [41].

64. 65.

[2015] FamCA 808 at [14]. FLA s 92.

66.

See Vadisanis & Vadisanis (2014) FLC ¶93-593; [2014] FamCAFC 97 in relation to resulting trusts and rebutting the presumption of advancement. In this case, the Full Court held that the husband’s mother had failed to rebut the presumption of advancement; that is, that the monies advanced were intended as a gift. See also Gillim & Gillim (No 2) (2014) FamCA 701. (2008) 238 CLR 366; 251 ALR 257; 40 Fam LR 1. For a discussion of this case, see Ogden & Ogden [2010] FMCAfam 865.

67. 68.

69.

70. 71.

See also John Glover, ‘Discretionary Trusts, Fiduciary Duties and the Family Law Act: Has the Family Court Acted Beyond Power?’ (2000) 14 Australian Family Law 184; Patrick Parkinson, ‘Family Trusts and Third Parties Under the Family Law Act 1975’ (2012) 26(1) Australian Journal of Family Law 5. Stephens & Stephens (Enforcement) (2009) 42 Fam LR 423; FLC ¶93-425 at [361]. For a discussion of this case, see Lee Aitken, ‘Muddying the Waters Further — Kennon & Spry: “Ownership”, “Control” and the “Discretionary Trust”’ (2009) 32 Australian Bar Review 173. (1981) 148 CLR 337; 6 Fam LR 591; FLC ¶91-000. Cf R v Dovey; Ex Parte Ross (1979) 141 CLR 526; 5 Fam LR 1; FLC ¶90-616. Following separation, the wife and two children continued to reside in the former matrimonial home which was registered in the name of a company that the husband effectively controlled. The husband and wife were both directors of the company, but the husband held the only share, which allowed him to vote at

general meetings. The husband called a meeting of shareholders to consider selling the home. The wife applied for an injunction restraining the husband from exercising his voting rights as a shareholder and a director of the company. Dovey J granted the injunction and the husband sought a writ of prohibition from the High Court. The High Court dismissed the husband’s claim and upheld the power of the Family Court to issue an injunction. 72. 73.

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; 6 Fam LR 591; FLC ¶91-000 at 76,061. For a summary of the situation with regard to third parties prior to 2004, see Lisa Young et al, Australian Family Law, 8th ed, LexisNexis Butterworths, Sydney, 2013, [14.32].

74. 75.

See Family Law Amendment Act 2003 (Cth) s 3 and Sch 6[1]. (1981) 148 CLR 337; 6 Fam LR 591; FLC ¶91-000.

76.

Note the comparative table headed ‘Orders and Injunctions Binding Third Parties’ contained in s 90TA. For example, the court can order that one spouse be made solely liable for a debt of both parties.

77. 78. 79.

For example, the court can order that both parties be made liable for the debt of the husband, or the husband be made solely liable for the debt of the wife. For example, assuming the husband and the wife were jointly and severally liable for a debt, the court can order that each be solely liable for 50 per cent of the debt, or the wife be liable for, say, 75 per cent of the debt and the husband be liable for 25 per cent of the debt.

80. 81.

FLA s 90AE(2)(a). FLA s 90AE(2)(b).

82.

In relation to FLA s 90AE(3)(c), one consequence would be that the property application should be served in sufficient time to enable any third parties to consider their rights. Section 90AE(4)(f) provides the following ‘example’: ‘The legal capacity of the third party to comply with the order could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see s 90AC).’

83.

84. 85.

Section 90AE(4)(g) provides the following ‘note’: ‘See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.’ [2015] FamCA 100.

86. 87.

Ibid at [90]. FLA s 90AF(1)(a).

88. 89.

FLA s 90AF(1)(b). FLA s 90AF(2)(a).

90. 91.

FLA s 90AF(2)(b). Section 90AF(4)(e) provides the following ‘note’ and ‘example’: ‘Note: see paragraph (3)(b) for requirements for making the order or granting the injunction

in these circumstances. Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.’ 92.

93.

Section 90AF(4)(f) provides the following ‘example’: ‘The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see s 90AC).’ Section 90AF(4)(g) provides the following ‘note’: ‘See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.’

94. 95.

(2008) FLC ¶93-370; [2008] FamCAFC 50. (2005) FLC ¶93-237.

96. 97.

Ibid at 79,929. Ibid at 79,932–3.

98. 99.

Ibid at 79,931–2. Ibid.

100. Slazenger v Hunt (S108/2005); Lederer v Hunt (S109/2006) (1 September 2006), available at www.austlii.edu.au (accessed 6 December 2015). 101. (2006) 208 FLR 1; 36 Fam LR 64. See also B Pty Ltd v K (2008) 219 FLR 107; 39 Fam LR 488; [2008] FamCAFC 113; Simmons v Simmons (2008) 232 FLR 73; 40 Fam LR 520; [2008] FamCA 1088. 102. For a discussion, see T Altobelli, Editorial, ‘Constitutional Challenge to Part VIIIAA’ (2006) 20 Australian Journal of Family Law 114. 103. (2006) 36 Fam LR 64 at 82–7. 104. (2006) 20 Australian Journal of Family Law 111 at 117–18. 105. (2013) 49 Fam LR 276; FLC ¶93-540. 106. (2013) FLC ¶93-540 at [85]. 107. Ibid at [87]. 108. Ibid at [85], [86]. 109. Ibid at [87]. 110. (1981) 148 CLR 337; 6 Fam LR 591; FLC ¶91-000. 111. FLA s 79(7)(b)/90SM(7)(b). 112. Kennon v Spry (2008) 238 CLR 366; 251 ALR 257; 40 Fam LR 1 at [227] per Kiefel J. Note that proceedings under s 85A are a ‘matrimonial cause’: see FLA s 4; Greval & Greval (1990) 13 Fam LR 829; FLC ¶92-132. 113. (2008) 238 CLR 366; 251 ALR 257; 40 Fam LR 1. 114. (2008) 40 Fam LR 1 at [227]. 115. Paul Brereton, ‘The High Court and Family Law: Two Recent Excursions’ (2013) 3 Family Law Review 63 at 75. 116. (2015) 52 Fam LR 618; [2015] FamCA 85.

117. [2015] FamCA 85 at [90]. 118. Ibid at [123]. 119. FLA s 85 was repealed by the Family Law Amendment Act 2000 (Cth) Sch 3 s 74; and FLA s 106B was inserted by the Family Law Amendment Act 2000 (Cth) Sch 1 s 80. Section 106B was also amended by the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth). For a discussion of s 106B (and the former s 85), see D Kovacs, ‘Recapturing Property: s 85’ (1990) 4 Australian Journal of Family Law 109; A Dickey, ‘Commentary: Family Law’ (1995) 69 Australian Law Journal 691. 120. Menz & Menz (1980) FLC ¶90-852; Pflugradt & Pflugradt (1981) 7 Fam LR 188; FLC ¶91-052; Marriage of Abdullah (1981) 6 Fam LR 654; FLC ¶91-003. 121. (1993) 17 Fam LR 156; FLC ¶92-434. 122. (2006) 36 Fam LR 64; [2006] FamCA 167. 123. Slazenger v Hunt (S108/2005); Lederer v Hunt (S109/2006) (1 September 2006), available at www.austlii.edu.au (accessed 6 December 2015). 124. (1993) 17 Fam LR 156 at 166–7. 125. Ibid at 198. For a discussion of the decision, see P Nygh, ‘Developments and Events: The Validity and the Ambit of s 85 of the Family Law Act: In the Marriage of Gould’ (1994) 8 Australian Journal of Family Law 109. 126. (1993) 17 Fam LR 156 at 168. 127. (1992) FLC ¶92-291 at 79,153. 128. Rickie & Rickie (1979) 4 Fam LR 737; FLC ¶90-626. 129. Kwon & Kwon (1993) 16 Fam LR 574; FLC ¶92-379. 130. (2010) FLC ¶93-434; [2010] FamCAFC 62 at [8]. 131. See also Heath & Heath (No 2) (1984) 9 Fam LR 642 at 645–6; Hudson & Hudson (1986) 11 Fam LR 189 at 191; ANZ Banking Group Ltd v Harper (1987) 11 Fam LR 649 at 653. 132. (1994) 17 Fam LR 656. 133. (1993) 17 Fam LR 675; (1994) FLC ¶92-470. 134. (1993) 17 Fam LR 675 at 679. 135. Pflugradt & Pflugradt (1981) 7 Fam LR 188; FLC ¶91-052; Hadjuk & Hadjuk (1993) FLC ¶92-383. 136. Ivanfy & Ivanfy (1978) 4 Fam LR 452; FLC ¶90-512. 137. Pflugradt & Pflugradt (1981) 7 Fam LR 188; FLC ¶91-052; Heath & Heath; Westpac Banking Corp (1983) 9 Fam LR 97; FLC ¶91-362; Heath & Heath (No 2) (1984) 9 Fam LR 642; FLC ¶91-517; D & D (1984) 10 Fam LR 73; FLC ¶91-593. 138. (1980) 5 Fam LR 769; FLC ¶90-813. 139. (1987) 11 Fam LR 649; (1988) FLC ¶91-938. 140. (1987) 11 Fam LR 649 at 654–5. For another illustration, see Toohey & Toohey (1991) 14 Fam LR 843; FLC ¶92-244. 141. (1984) 10 Fam LR 73; FLC ¶91-593. 142. (1984) 10 Fam LR 73 at 83.

143. Stephens & Stephens [2007] FLC ¶93-336; Menz & Menz (1980) FLC ¶90-852. 144. Pflugradt & Pflugradt (1981) 7 Fam LR 188. 145. Gelley & Gelley (No 2) (1992) FLC ¶92-291 at 79,156. 146. (1993) 17 Fam LR 675; (1994) FLC ¶92-470 at 80,855. 147. Gould & Gould; Swire Investments Ltd (1993) 17 Fam LR 156 at 170 per Fogarty J (referring to the former s 85). 148. Ibid at 170. 149. Ibid. 150. (1981) 6 Fam LR 654; FLC ¶91-003. 151. (1981) 6 Fam LR 654 at 662. 152. Marriage of Abdullah (1981) 6 Fam LR 654; FLC ¶91-003; Palmerston Hospitals Pty Ltd v Holmdore Nominees Pty Ltd (1992) FLC ¶92-275; Turnbull & Turnbull (1990) 15 Fam LR 81; (1991) FLC ¶92-258; Bassi v Maas (1999) 25 Fam LR 678; FLC ¶92-867. See also Marriage of Davidson (No 2) (1994) 17 Fam LR 656 at 657, where the Full Court described the transaction as ‘a classic example of a party manipulating the law for his own purposes’. 153. (1994) FLC ¶92-498. 154. (1993) 17 Fam LR 675; (1994) FLC ¶92-470. 155. (1993) 17 Fam LR 675 at 682. 156. Ibid. 157. (1984) 9 Fam LR 642; FLC ¶91-517. 158. (1987) FLC ¶91-800. 159. (1993) 17 Fam LR 675; (1994) FLC ¶92-470. 160. (1993) 7 Fam LR 675 at 681. 161. For the historical context of parties entering into agreements, see Lisa Young et al, Family Law in Australia, 8th ed, LexisNexis Butterworths, Sydney, 2013, [14.4]– [14.8]. 162. Indeed, only a small percentage of disputed matters (property and children’s cases) go to a final hearing (eg it was just over 15 per cent in 2014–15): see Family Court of Australia, Annual Report 2014–2015, Family Court of Australia, Melbourne, 2015, p 54. (Note: the settlement rates in the Federal Circuit Court are no doubt higher, as the Family Court deals with the most extreme and difficult cases, but the figures in the Federal Circuit Court Annual Report are not broken down into family as against the other matters that the court hears.) 163. R Mnookin and L Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950 at 968. 164. Family Law Rules 2004 (Cth) rr 10.15–10.18. See also Federal Circuit Court Rules 2001 (Cth) rr 13.04–13.05. 165. Family Court of Australia, Annual Report 2013–2014, Family Court of Australia, Canberra, 2014, Figure 3.2 and see generally, Federal Circuit Court of Australia, Annual Report 2013–2014, Federal Circuit Court of Australia, Canberra, Part 3. 166. (1984) FLC ¶91-512.

167. Ibid at 79,165–6. 168. (1991) 172 CLR 84. 169. For a recent example of where orders were made by consent and leave was granted to review the decision of the judicial registrar, see Hearn v Woolcott [2014] FamCA 42 per Rees J. 170. Ibid at 104. 171. Ibid. 172. (2013) FLC ¶93-563. 173. Stanford v Stanford (2012) 247 CLR 108; (2012) FLC ¶93-518. 174. (2008) FLC ¶93-386. 175. [2015] FamCAFC 40; FLC ¶93-644. 176. [2015] FamCAFC 40 at [15]. 177. See Family Law Amendment Act 2000 (Cth) s 3 and Sch 2[10] (which commenced on 27 December 2000). 178. FLA s 4(1) (see the definitions of ‘maintenance agreement’ and ‘financial matters’). 179. Commissioner for Taxes (NT) v Liveris (1990) 14 Fam LR 336; FLC ¶92-174. 180. FLA ss 86(1A), 87(1A). See also Family Law Amendment Act 2000 (Cth) s 3 and Sch 2[10] (which commenced on 27 December 2000). 181. See Lisa Young and Geoffrey Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Sydney, 2009, [14.12]–[14.17]. 182. See, for example, Australian Law Reform Commission (ALRC), Report No 39, Matrimonial Property, AGPS, Canberra, 1987, [443]–[450]; ALRC, Report No 57, Multiculturalism and the Law, AGPS, Canberra, 1992, [5.44]–[5.46]. These reports may be accessed via the ALRC website: www.alrc.gov.au (accessed 3 December 2015). 183. Ibid. 184. Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth), The Family Law Act 1975: Aspects of its Operation and Interpretation, AGPS, Canberra, 1992. 185. Ibid, [12.24]. 186. For a discussion of financial agreements prior to their enactment under the FLA, see Belinda Fehlberg and Bruce Smyth, ‘Prenuptial Agreements for Australia: Why Not?’ (2004) 14 Australian Journal of Family Law 80. 187. See FLA ss 4(1) (definitions of ‘financial agreement’ and ‘financial matters’), 71A, 90B–90D. 188. FLA ss 90G, 90UJ. 189. For a discussion of this issue, see A Harland, ‘A New Era in De Facto Relationships Law: Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth)’ (2008) 13(4) Current Family Law 195 at 198. 190. See the Hon George Brandis QC, ‘Consultation Opens on Proposed Amendments to Laws Governing Pre-nuptial Agreements’, Media Release, 30 April 2015, www.attorneygeneral.gov.au/Mediareleases/Pages/2015/SecondQuarter/30-April-2015-Consult-

ation-opens-on-proposed-amendments-to-laws-governing-pre-nuptial-agreements.aspx (accessed 3 December 2015). 191. See s 90C(2A) (an agreement made under s 90C ‘may be made before or after a marriage has broken down’). This provision was added in 2003 by the Family Law Amendment Act 2003 (Cth) s 3 and Sch 2[10]. 192. Belinda Fehlberg and Bruce Smyth, ‘Binding Financial Agreements in Australia: The First Year’ (2002) 16 International Journal of Law, Policy and the Family 127. 193. Ibid. 194. (2011) 45 Fam LR 540; FLC ¶93-470. 195. (2011) FLC ¶93-470 at [94]. 196. FLA ss 90B(1)(a), 90C(1)(a), 90D(1)(a)/90UB(1)(a), 90UC(1)(a), 90UD(1)(a). 197. FLA s 90B(1)(a)/90UB(1)(a). 198. FLA s 90C(1)(a)/90UC(1)(a). 199. FLA s 90D(1)(a)/90UD(1)(a). 200. FLA ss 90(B)(2)(a), 90(C)(2)(a), 90D(2)(a)/90UB(2)(a), 90UC(2)(a), 90(UD)(2)(a). 201. FLA ss 90(B)(2)(b), 90(C)(2)(b), 90D(2)(b)/90UB(2)(b), 90UC(2)(b), 90(UD)(2)(b). 202. FLA ss 90(B)(1)(aa), 90(C)(1)(aa), 90D(1)(aa)/90UB(1)(b), 90UC(1)(b), 90(UD)(1)(b). 203. [2015] FamCAFC 241. 204. Ibid at [33]. 205. FLA ss 90B(4), 90C(4), 90D(4)/90UB(4), 90UC(4), 90UD(4). 206. FLA ss 90B(3)(a), 90C(3)(a), 90D(3)(a)/90UB(3), 90UC(3), 90UD(3). 207. FLA s 90E/90UH. 208. See generally, Child Support (Assessment) Act 1989 (Cth) Pt 6 Divs 2–3; note particularly s 84(5): ‘nothing in this Part is to be taken to prevent the same agreement being both a child support agreement and … (b) a maintenance agreement or a financial agreement under the [FLA]; or (c) a Part VIIIAB financial agreement …’. 209. Child Support (Assessment) Act 1989 (Cth) s 152. 210. FLA s 90MH(1). 211. FLA s 90MH(2)–(5). 212. FLA s 90MN. 213. See Family Law Amendment Act 2003 (Cth) s 3 and Sch 5[1]. 214. The restriction in the former version of FLA s 90F did not apply to prenuptial agreements, and arguably did not apply to pre-separation agreements. 215. The ‘notes’ to s 90DA/90UF state: ‘Before the separation declaration is made the financial agreement will be of force and effect in respect of other matters it deals with.’ 216. FLA s 90H/90UK. 217. FLA s 90DA(1)–(5) (incorporated into the Act by the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth) s 3 Sch 5[4] and s 90UF(1)–(5) in respect of couples in a de facto relationship).

218. FLA s 90DA(1A)/90UF(1). 219. Ibid. 220. (2012) 247 CLR 108; 47 Fam LR 481; FLC ¶93-518. 221. FLA ss 90B(2)(a), 90C(2)(a), 90D(2)(a)/90UB(1)(a), 90UC(1)(a), 90UD(1)(a). 222. FLA ss 90B, 90C, 90D/90UB, 90UC, 90UD: ‘the parties ‘may make a … financial agreement with one or more other people’ (emphasis added). 223. FLA s 90DB(1). 224. See generally, Patrick Parkinson, ‘Setting Aside Financial Agreements’ (2001) 15 Australian Journal of Family Law 26. 225. Kostres & Kostres (2009) 42 Fam LR 336; FLC ¶93-420. In this case the agreement was held to be void for uncertainty. 226. (2009) FLC ¶93-420 at [128]. 227. See, for example, Adame & Adame [2014] FCCA 42; Delahey & Garra-Marsh [2015] FCCA 84; Thorne & Kennedy [2015] FCCA 484, where duress was argued. In Hay & Hay [2014] FCCA 775, in addition to raising duress, undue influence and unconscionability generally were argued. 228. See, for example, Parker & Parker (2010) 43 Fam LR 548; [2010] FamCA 664; Estate of the Late Ms Fan & Lok [2015] FamCA 300. 229. (2009) 42 Fam LR 50; FLC ¶93-411. 230. (2009) FLC ¶93-411 at [155]. See also Ryan & Jocye [2011] FMCAfam 225. 231. (2011) 45 Fam LR 540; FLC ¶93-470. 232. See generally, Paul Brereton, ‘Binding or Bound to Fail? Equitable Remedies and Rectification of Financial Agreements’ (2013) 23 Australian Family Lawyer 31. 233. FLA s 90K(1)(a)/90UM(1)(a). In Jeeves & Jeeves [2010] FamCA 488, Cronin J held that there was no fraud because the wife did not believe the husband to be truthful. 234. FLA s 90K(1)(aa), (1A)/90UM(1)(b), (2). 235. FLA s 90K(1)(ab)/90UM(1)(c), (d). 236. FLA s 90K(1)(b)/90UM(1)(e). 237. FLA s 90K(1)(c)/90UM(1)(f): see Gregory & Gregory [2014] FCCA 106. 238. FLA s 90K(1)(d), (2)/s 90UM(1)(g), (4): see Fewster & Drake [2015] FamCA 602, where the court held that the birth of a second child resulted in a material change in circumstances creating hardship in the relevant sense. 239. FLA s 90K(1)(e)/90UM(1)(h). See Moreno & Moreno [2009] FMCAfam 1109, where the fact that the husband had subjected the wife to ongoing physical and mental abuse constituted duress that was sufficient to set the agreement aside on the basis of his unconscionable conduct; and Saintclaire & Saintclaire [2013] FamCA 491, where an agreement was set aside on the basis of undue influence and unconscionable conduct (this decision was overturned on appeal: see Saintclaire & Saintclaire [2015] FamCAFC 245). 240. (2014) FLC ¶93-579; [2014] FCWA 11. 241. For a recent discussion of undue influence and unconscionable conduct, see Saintclaire & Saintclaire [2015] FamCAFC 245, where the Full Court found that there

was no evidence to sustain a finding that the parties’ relationship gave rise to a presumption of undue influence or unconscionability. 242. FLA s 90K(1)(f)/90UM(1)(i). 243. FLA s 90K(1)(g)/90UM(1)(j). 244. [2015] FamCAFC 72; (2015) 53 Fam LR 171; FLC ¶93-650. 245. (2015) FLC ¶93-650 at [67]. 246. [2015] FamCAFC 221. 247. Ibid at [72]. In Re Chemaisse (1987) 11 Fam LR 392; FLC ¶91-812, the Full Court upheld a decision setting aside an agreement between the parties transferring property from the husband to the wife. The agreement had been entered into to avoid the Commissioner of Taxation executing a judgment against the husband’s property. 248. Ruane v Bachmann-Ruane [2009] FamCA 1101. 249. Family Law Amendment Act 2003 (Cth). 250. Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth). 251. In Senior & Anderson (2011) 45 Fam LR 540; FLC ¶93-470 and Parker & Parker (2012) FLC ¶93-449, differently constituted Full Courts discussed the retrospective aspects of this legislation without reaching consensus. 252. (2013) 51 Fam LR 115; FLC ¶93-566. 253. For a detailed examination of the legislative amendments and their application, see Alexandra Harland et al, Principles of Family Law, 2nd ed, Thompson Reuters, NSW, 2015, [13.350]. 254. (2013) FLC ¶93-566 at [128]. 255. Wallace & Stelzer [2014] HCATrans 135. 256. (2008) 38 Fam LR 503; FLC ¶93-357. For a discussion, see R Benjamin, ‘The Practical Implications of Financial Agreements: Adopting a Strict Interpretation’ (2008) 13(4) Current Family Law 185. 257. (2008) 38 Fam LR 503 at 511–12; FLC ¶93-357. 258. (2011) 250 FLR 444; (2011) 45 Fam LR 540; [2011] FamCAFC 129. 259. (2011) 45 Fam LR 540 at 566. 260. Ibid at 565. 261. Ibid at 566. 262. Ibid at 561. 263. Ibid at 570. 264. [2012] FamCAFC 33. 265. Ibid at [149]; in other words, situations in which an enforcement application has not been made, although the subject matter of proceedings is clearly the validity of the agreement. 266. (2013) FLC ¶93-546; 50 Fam LR 260. 267. For a discussion of this case, see Martin Bartfeld QC, ‘Hoult and Hoult: The Full Court Explains Financial Agreements Again’ (2013) 23 Australian Family Lawyer 1.

268. (2013) FLC ¶93-546; 50 Fam LR 260 at [60]. 269. (2013) FLC ¶93-566; 51 Fam LR 115 at [103]. Hoult was also approved in the Full Court decision of Logan & Logan (2013) FLC ¶93-555; [2013] FamCAFC 151 per May, Thackray and Strickland JJ. 270. (2015) 53 Fam LR 121; [2015] FamCAFC 30. 271. [2015] FamCAFC 30 at [27]. 272. For a more recent decision regarding the required advice to be given to parties see Piper & Muller [2015] FamCAFC 241. 273. [2015] FamCA 360. 274. Hoult v Hoult (2013) FLC ¶93-546; 50 Fam LR 260 at [288]. These comments were made in the context of an analysis of the Full Court’s decision in Parker & Parker [2012] FamCAFC 33. 275. (2013) FLC ¶93-546; 50 Fam LR 260 at [306]. 276. (2013) 50 Fam LR 260 at [307]. 277. Ibid at [195]–[197]. 278. Ibid at [308]. 279. Ibid at [200]. 280. Ibid at [310]. 281. Ibid at [207] per Thackray J [207]; at [314] per Strickland and Ainslie-Wallace JJ. 282. Jacqueline Campbell, ‘Binding Financial Agreements Unbound’ (2012) 11 Law Institute Journal 35. 283. Explanatory Memorandum, Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 (Cth), p 10. 284. Ibid, p 12. 285. FLA s 79(13) states that ‘[t]he Court must not grant leave under [s 79(2)] unless the court is satisfied that there are exceptional circumstances’. 286. See, for example, Page & Page (No 2) (1982) FLC ¶91-241; Reed & Reed; Grellman (Intervenor) (1990) FLC ¶92-105; Audet v Audet; Official Trustee in Bankruptcy (Intervenor) (1995) FLC ¶92-607. 287. Reed & Reed; Grellman (Intervenor) (1990) FLC ¶92-105; O’Neill & O’Neill (1998) FLC ¶92-811; [1998] FamCA 67; Guirguis v Guirguis (1997) FLC ¶92-726. 288. See, for example, Trustee for the Bankrupt Estate of Lasic & Lasic [2009] FamCAFC 64. 289. [2009] FamCAFC 4; (2009) 40 Fam LR 552; FLC ¶93-392. 290. (2009) 40 Fam LR 552 at 568. 291. Ibid at 569. 292. [2009] FamCAFC 20; (2009) 41 Fam LR 120; (2009) FLC ¶93-394. 293. (2009) 41 Fam LR 120 at 131, 158. 294. Ibid at 121–3, 292. 295. [2015] FamCAFC 221. 296. Ibid at [46] per Finn, Strickland and Hogan JJ.

297. [2013] FCCA 2219. 298. Ibid at [16], [26]. 299. See, for example, Strahan & Strahan (2009) 42 Fam LR 203; (2011) FLC ¶93-466 (Boland, Thackray and O’Ryan JJ), which was an appeal against orders for interim property settlement. 300. Ebner & Pappas [2014] FamCAFC 229; (2014) FLC ¶93-619 at [33]. 301. (1979) 143 CLR 1. 302. Ibid at 11–12 per Mason J; at 21 per Murphy J (dissenting); at 22 per Aicken J. 303. See generally, Patrick Lim, ‘Obstacles to Overcome in Setting Aside a Property Settlement’ (2012) 50(9) Law Society Journal 64. 304. Prowse & Prowse (1995) FLC ¶92–557; Gitane & Velacruz (2008) FLC ¶93-371. 305. Official Trustee in Bankruptcy & Donovan (1996) FLC ¶92–703. 306. (1995) 18 Fam LR 675; FLC ¶92-585. 307. (1995) 18 Fam LR 675 at 677. 308. (1994) 18 Fam LR 519; (1995) FLC ¶92-573. 309. (1994) 18 Fam LR 519 at 528. 310. (1994) 18 Fam LR 348; FLC ¶92-557. 311. (1994) 18 Fam LR 348 at 356. 312. See, for example, Arpas & Arpas (1989) FLC ¶92-042; Hannah & Hannah; Tozer & Tozer (1989) 13 Fam LR 531; FLC ¶95-052; Gebert & Gebert (1990) 14 Fam LR 62; FLC ¶92-137; Robinson & Huff (1990) FLC ¶92-168; Clifton & Stuart (1990) 14 Fam LR 511; (1991) FLC ¶92-194; Public Trustee v Gilbert (1991) 14 Fam LR 573; FLC ¶92211; Marriage of La Rocca (1991) FLC ¶92-222; Bigg v Suzi (1998) 22 Fam LR 700; FLC ¶92-799; Marriage of Prior (2002) 30 Fam LR 72; FLC ¶93-105. 313. (2007) 38 Fam LR 106; FLC ¶93-352; [2007] FamCA 1512. 314. (1997) 21 Fam LR 583; FLC ¶92–747. 315. (1990) 14 Fam LR 511; (1991) FLC ¶92-194. 316. (1990) 14 Fam LR 511 at 518–19 (confirming the Full Court’s statement in Gebert & Gebert (1990) 14 Fam LR 62; FLC ¶93-137). See also Elliott & Wilcox (1996) 20 Fam LR 567. 317. (1990) 14 Fam LR 511 at 519. 318. Ibid. 319. Ibid at 520. See also Gebert & Gebert (1990) 14 Fam LR 62; FLC ¶93-137. 320. (2002) 30 Fam LR 72; FLC ¶93-105. 321. (2002) 30 Fam LR 72 at 80–1. 322. Ibid at 78. 323. Ibid. 324. Ibid. 325. Ibid at 79. 326. Ibid.

327. Ibid at 80. 328. (1996) 20 Fam LR 567; FLC ¶92-687. 329. (1996) 20 Fam LR 567 at 572. 330. See Family Law Amendment Act 2000 (Cth) Sch 2 s 6. 331. (1993) 17 Fam LR 236; FLC ¶92-436. 332. (1994) 17 Fam LR 236 at 241. See also Hickey & Hickey (2003) 30 Fam LR 355 at 370. 333. (1993) 17 Fam LR 236 at 242. See also Pelerman & Pelerman (2000) FLC ¶93–037. 334. [2014] FamCAFC 229 (2014) FLC ¶93-619. 335. Molier & Van Wyk (1980) 7 Fam LR 18; FLC ¶90–911; Fellows v Fellows (1988) FLC ¶91-910. 336. (1983) 9 Fam LR 323; FLC ¶91-364. 337. (1983) 9 Fam LR 323 at 326. 338. La Rocca & La Rocca (1991) FLC ¶92–222. 339. (1984) 10 Fam LR 56; FLC ¶91-592. 340. (1984) 10 Fam LR 56 at 64. 341. (1991) 14 Fam LR 715 at 720. 342. (1993) 17 Fam LR 793 at 801. 343. (1998) 23 Fam LR 86; FLC ¶92-805. 344. (1998) 23 Fam LR 86 at 95. 345. Ibid at 96. 346. Ibid at 97. 347. (1990) 13 Fam LR 592; FLC ¶92-114. 348. (1990) 13 Fam LR 592 at 594. 349. Ibid at 598. 350. Marriage of Cawthorn (1998) 23 Fam LR 86 at 97. 351. (1991) 15 Fam LR 197; FLC ¶92-260. See also Simpson & Hamlin (1984) 9 Fam LR 1040; FLC ¶91-576. 352. (1991) 15 Fam LR 197 at 201. 353. Ibid at 202. 354. Ibid at 203–5. Interestingly, the court reassessed the contributions at 72 per cent in favour of the husband and then made a further adjustment of 8 per cent in his favour for the ‘s 75(2) factors’ (ie giving the husband 80 per cent of the relevant property). See also Simpson & Hamlin (1984) FLC ¶91–576, where the Full Court cautioned that the ‘change in the responsibility for daily care and control of the children of the marriage … could not be held of itself to be an unusual circumstance’. 355. (1984) FLC ¶91-576; 9 Fam LR 1040. 356. [1995] FamCA 102. 357. (2008) 39 Fam LR 460; FLC ¶93-371. 358. (2008) FLC ¶93-371 at [13].

359. Sommerville & Sommerville (1999) 27 Fam LR 233;(2000) FLC ¶93-042. 360. Bourke & Bourke (1994) FLC ¶92-479. 361. Marriage of Prior (2002) 30 Fam LR 72; FLC ¶93-105. 362. (1990) FLC ¶92-137. See also Prowse & Prowse (1995) FLC ¶92–557, where the wife signed consent orders and 21 months later applied to have them set aside. The Full Court upheld the trial judge’s decision not to set the orders aside even assuming there was a miscarriage of justice, on the basis that the wife delayed bringing the application; the husband had rearranged his financial affairs; at the time she signed the orders the wife was aware that she was accepting less than she was likely to be awarded by a court; and the wife had obtained legal advice. 363. [2012] FamCAFC 97. 364. Ibid at [101].

INDEX ___________________________

References are to paragraph numbers

A Abduction of children see International child abduction Aboriginal and Torres Strait Islanders best interests principle and …. 9.78–9.85 children’s rights …. 9.78–9.85 Family Law Council report …. 9.85 Aboriginal customary marriages de facto relationship legislation …. 5.9 legal recognition …. 5.9 overview …. 5.9 polygamous marriage …. 5.5 state and territory legislation …. 3.22 Access orders see also Contact orders; ‘Spend time with’ orders overview …. 8.51–8.52 protection orders, and …. 8.109–8.115 Admissibility of evidence see Evidence Adoption Commonwealth’s power …. 4.48–4.51, 4.90 injunctions to restrain adoption …. 4.48 ‘de facto’ adoptions …. 8.48 Kupai Omasker …. 8.48 limits of federal jurisdiction …. 4.48–4.51 parental responsibility …. 8.28 prohibited relationships …. 5.32 states and territories …. 4.48–4.51, 4.90

surrogacy, and …. 7.39 Adult children maintenance for …. 11.17–11.30 application, who may bring …. 11.30 attitude of child to parent …. 11.29 disabilities …. 11.19 education …. 11.20–11.28 government allowance entitlement of child …. 11.26 income and earning capacity of child …. 11.23 necessary, whether …. 11.21 overview …. 11.18 property held by child …. 11.24–11.26 property applications by …. 12.42 Adultery historical view …. 1.20–1.23, 1.25–1.27 adulterous petitioners …. 1.26 commission by both parties …. 1.20, 1.26 discretion statements …. 1.26 double standards …. 1.24, 1.27 spouse maintenance …. 10.14 Adversary system …. 2.1 Affinity see Prohibited relationships Age requirements see also Marriageable age domicile …. 4.106 wishes of child, relevance of age …. 8.29–8.34 Alteration of property interests …. 13.1–13.40 see also Property distribution adding back notional property …. 13.26–13.29, 14.34 adult children …. 12.42 applications for orders …. 10.18 time limits …. 13.3 extension, leave …. 13.4–13.5 approach of court in determining …. 13.39 Australian system …. 12.4 child support, consideration of …. 14.63 community of property system …. 12.2–12.3, 12.24 compensation awards …. 14.55 conduct, considerations of …. 13.29–13.33

contributions to property additional factors …. 14.56–14.64 assessment of …. 14.7 asset-by-asset approach …. 14.16–14.17 global approach …. 14.16–14.17 compensation awards …. 14.55 family violence …. 14.24, 14.37–14.44 Kennon contributions …. 14.24, 14.41 public policy …. 14.44 financial …. 14.11 financial misconduct …. 14.33–14.36 gifts …. 14.51 identification of …. 14.9–14.10 inheritances …. 14.52–14.53 initial …. 14.45–14.47 judicial discretion …. 14.7–14.8, 14.68 negative …. 14.33–14.36 non-financial …. 14.12 partnership approach …. 12.13, 14.21–14.23, 14.50 post-separation …. 14.48–14.50 special contributions …. 14.14, 14.24–14.32 welfare of the family …. 14.13–14.15, 14.21–14.23 windfalls …. 14.54 discretion of court …. 13.1, 14.7–14.8, 14.68 earning capacity, effect on …. 14.57 economic justice …. 12.2–12.4 equality as starting point …. 14.18–14.19 family contributions …. 14.13–14.15, 14.21–14.23 family violence and …. 14.37–14.44 finality principle …. 13.7–13.8 financial contributions …. 14.10–14.11 forms of order …. 14.66 fundamental principles …. 13.16, 13.19–13.39 future needs …. 14.56–14.64 gifts …. 14.51 historical development of law …. 12.10–12.22 homemaker/parent contributions …. 14.13–14.15, 14.21–14.23 identification of property interests see Identification of interests in property

improvement of property …. 14.11 inheritances …. 14.52–14.53 judicial discretion …. 14.7–14.8, 14.68 jurisdiction of the Family Court …. 12.29–12.32 de facto relationships, parties to former …. 12.43 de facto financial cause, definition …. 12.43 duration of …. 12.44 existence of, establishing …. 12.44 geographical requirements …. 12.45 threshold conditions …. 12.44 married couples …. 12.30 ‘arising out of the marital relationship’ …. 12.33 death of a party …. 12.35–12.36 intact marriages …. 12.34 matrimonial cause …. 12.31 overseas orders/declarations, in relation to …. 12.38 post-marital cohabitation …. 12.33 pre- or post-divorce …. 12.32 principal relief, proceedings related to …. 12.37 just and equitable …. 13.1, 13.34–13.39, 14.65 just and equitable discretion …. 14.65 legislation, overview …. 13.12–13.13 discretion, exercise of …. 13.13 sale or transfer of property …. 13.12 s 79/90SM provisions …. 13.9, 13.12 s 79(4)/90SM(4) factors …. 13.12 prospective …. 13.13 retrospective …. 13.13 s 75(2)/90SF(3) …. 13.13 types of orders order in substitution of rights …. 13.12 sale or transfer of property …. 13.12 trustee in bankruptcy, alteration of interests of …. 13.12 lost opportunity …. 14.13 matrimonial causes power …. 4.27 negative contributions …. 14.33–14.36 non-financial contributions …. 14.12 notional assets, adding back …. 13.26–13.29, 14.34

other orders, consideration of …. 14.62 overview …. 13.1 personal misconduct …. 14.37–14.44 financial …. 14.33–14.36 property contributions …. 14.11–14.12 prospective adjustment …. 14.56–14.64 public policy element …. 14.44 recognised legal principles …. 13.34 s 75(2) factors …. 14.59–14.61 setting aside property orders see Setting aside social engineering …. 14.60 special contributions …. 14.14, 14.24–14.32 spousal support and …. 14.67 Stanford v Stanford see Stanford v Stanford steps of court in determining …. 13.39 superannuation contributions …. 14.11 valuation of property interests …. 13.30 violence in marriage …. 14.37–14.44 welfare of the family contributions …. 14.13–14.15, 14.21–14.23 windfalls …. 14.54 Alternative dispute resolution see Dispute resolution Ancillary proceedings void marriage …. 6.109–6.112 jurisdiction …. 6.110, 6.112 polygamous marriage …. 6.111 Annulment of marriage see Nullity of marriage Appeals …. 4.119–4.129 best interests principle …. 4.124 decree absolute …. 6.93–6.96 Family Court of Australia …. 4.119–4.120 fresh evidence …. 4.120, 4.127 Full Court …. 4.120, 4.126, 4.128 High Court …. 4.120, 4.129 prerogative writs …. 4.129 special leave …. 4.129 judicial discretion …. 4.121–4.125 questions of law …. 4.120, 4.127 rehearings …. 4.120

single judge …. 4.127 Family Court of Western Australia …. 4.117, 4.127–4.128 Magistrates Court of Western Australia …. 4.127 Federal Circuit Court …. 4.126–4.128 judicial discretion …. 4.119–4.125 principles …. 4.123–4.125 substitution of decisions …. 4.124 nature of …. 4.119–4.125 overview …. 4.119–4.120 questions of law …. 4.120, 4.127 single judge, to …. 4.127 summary jurisdiction …. 4.120 Apprehended violence orders see Protection orders Arbitration …. 2.22–2.24 award …. 2.422 categories of arbitration …. 2.22 overview …. 2.22, 2.24 procedure …. 2.23 reforms …. 2.24 ‘Arising out of the marital relationship’ death of a party …. 12.35–12.36 jurisdiction and the Family Law Act …. 12.33 intact marriages …. 12.34 post-marital cohabitation and …. 12.33 property applicable to …. 12.33 Stanford v Stanford see Stanford v Stanford Assisted conception …. 7.15–7.36 access to procedures …. 7.33–7.36 age restrictions …. 7.34 deceased spouse …. 7.30 discrimination claims …. 7.33 infertility requirements …. 7.33 marital status …. 7.33 older women …. 7.34 posthumous use of sperm …. 7.30 prior child protection orders …. 7.36 single or lesbian women …. 7.33 welfare of the child …. 7.35–7.36

artificial insemination …. 7.15 consent to procedure …. 7.18 donor, by …. 7.18 partner, by …. 7.18 same-sex couples …. 7.17–7.18, 7.21 single mothers …. 7.23 surrogacy …. 7.37 child support and …. 7.21, 7.25–7.26 cloning …. 7.27 legislative developments …. 7.31 therapeutic cloning …. 7.32 Commonwealth’s powers …. 7.31–7.32 de facto relationships …. 7.17–7.18 access to procedures …. 7.33 same-sex couples …. 7.17–7.18, 7.33 donors birth certificate, name on …. 7.22, 7.24 child support, liability for …. 7.25–7.26 Family Law Act 1975, under, …. 7.7, 7.17–7.19 parentage status of …. 7.20–7.21 state and territories legislation, …. 7.20–7.24 use of genetic material posthumously consent …. 7.30 gametes …. 7.29 sperm …. 7.30 frozen embryos …. 7.28–7.29 parentage presumptions …. 7.28 status of embryos …. 7.28–7.29 succession …. 7.29 gamete intra-fallopian transfer …. 7.15 in vitro fertilisation …. 7.15 child support liability …. 7.25–7.26 development of practice …. 7.16 legal consequences …. 7.16 maternity …. 7.16 procedure …. 7.16 surrogacy …. 7.37–7.38 legal problems …. 7.15–7.16

legal status of children …. 7.17 legislation …. 7.17–7.20, 7.31–7.32 research practices …. 7.27, 7.31–7.32 states and territories …. 7.17, 7.31 overview …. 7.15–7.16 parent, definition …. 7.20–7.21 parentage deeming provisions …. 7.7, 7.17 donors status …. 7.20–7.21 Family Law Act …. 7.7, 7.17–7.19, 7.23 presumptions …. 7.18 regulation of …. 7.27, 7.30 Commonwealth legislation …. 7.32 states and territories legislation …. 7.31 research practices …. 7.27, 7.31–7.32 same-sex couples …. 7.17–7.19, 7.21 access to procedures …. 7.17 single mothers …. 7.23 states and territories legislation …. 7.20, 7.23 surrogacy …. 7.37 common law status …. 7.39 ethics …. 7.38 Family Law Act …. 7.45–7.49 legislative developments …. 7.41–7.44 parentage presumptions …. 7.39 techniques …. 7.15–7.16 trading in genetic material …. 7.32 Australian Capital Territory civil partnership …. 1.62, 5.119, 6.126 de facto relationships …. 1.62 registration …. 6.125 de facto relationships in …. 5.94, 5.116, 5.118, 10.48–10.49 divergence in approach …. 10.50 Domestic Relationships Act 1994 …. 12.20 scope …. 12.20 embryo research restrictions …. 7.31 same-sex marriages …. 1.62 surrogacy in …. 7.42

Australian Constitution see Constitution Australian Divorce Transitions Project …. 12.6

B Baby bonus …. 10.63 Bankruptcy family law proceedings and …. 15.61–15.67 reforms …. 10.21, 15.62–15.67 spouse maintenance …. 10.21, 10.25, 10.32 standing of bankrupt …. 15.61 trustee in bankruptcy …. 15.62–15.63 Bargaining shadow of the law, in …. 15.35 Best interests of the child Aboriginal children …. 9.78–9.85 appeals …. 4.124 biological parents, role of …. 9.55–9.62 checklist …. 8.57 conduct of parties …. 9.63–9.77 confidentiality provisions, and …. 2.57–2.65 considerations …. 8.61, 8.63, 8.65 ‘friendly parent’ provisions …. 8.15 mandatory considerations …. 8.61, 8.63, 8.65 court’s approach …. 8.63 other contexts …. 8.67 principles …. 8.55, 8.64–8.66 credit, findings as to …. 9.25 criticism of …. 8.60 determining best interests …. 8.61–8.63 considerations …. 8.61, 8.63, 8.65 presumption of shared responsibility …. 8.62 principles …. 8.55, 8.64–8.66 evidence …. 8.71–8.72 exercise of court’s jurisdiction …. 9.1 family violence …. 8.14, 9.28–9.39 ‘friendly parent’ provisions …. 8.15 hidden issue, as …. 9.33

importance of …. 9.34–9.36 unacceptable risk …. 9.31–9.32 homosexuality HIV/AIDS …. 9.70 overview …. 9.69–9.70 interests, definition …. 8.57 international convention …. 8.55, 9.45, 9.76, 9.78, 9.81 kidnapping …. 9.66 mandatory process for determining …. 8.61–8.63 matrimonial conduct …. 9.64–9.65 maturing minors …. 8.34 meaningful relationship with both parents, benefit to child …. 9.27 overview …. 8.55–8.60, 9.24–9.25 parenting orders …. 8.55–8.60 application …. 8.58–8.59 considering making an order …. 8.56–8.57 criticism …. 8.60 interim orders …. 8.62, 8.98–8.101 prescribed model …. 8.61–8.63 presumption of shared responsibility …. 8.62–8.63 family violence …. 8.14, 8.62 primary versus additional considerations …. 9.26 reforms …. 8.56–8.57 religion …. 9.71–9.77 blood transfusions …. 9.71, 9.75 scope of operation …. 8.64–8.68 confidentiality provisions, and …. 8.66 express indication of approach …. 8.66 other contexts …. 8.65 sexual abuse allegations and …. 9.100 siblings, separation of …. 9.50–9.54 status quo, disturbing …. 9.46–9.49 statutory framework …. 9.2–9.4 sterilisation of intellectually disabled …. 8.118–8.120 relevant considerations …. 8.123 tests and standards …. 8.59 third parties, role of …. 9.55–9.62 Torres Strait Islander children …. 9.78–9.85

unconventional lifestyle …. 9.67–9.68 variation of orders …. 8.105 views of child …. 9.40–9.45 Bigamy defences …. 5.29, 6.17–6.18 historical background …. 1.4, 1.6, 1.15–1.16 overview …. 4.12 remarriage before final divorce order …. 6.91 Biological parents …. 7.16 see also Parentage Birth registration parentage presumption arising from …. 7.8 overseas born children …. 7.8 Blood transfusions …. 9.71, 9.75 Breach of promise to marry …. 5.16–5.20 abolition of action …. 5.19 assessing damage …. 5.18 overview …. 5.16 Breakdown of relationships see also Marriage breakdown adolescents, effect on …. 1.88 children, effect on …. 1.84–1.89 adolescents …. 1.89–1.88 help with transition …. 1.87 infants and toddlers …. 1.84 pre-schoolers …. 1.85 school age …. 1.86 signs …. 1.90–1.92 toddlers …. 1.84 de facto relationships definition …. 6.117 property distribution upon see Property distribution what constitutes …. 6.118–6.125 pre-schoolers, effect on …. 1.85 property distribution see Property distribution psychological impacts of …. 1.80–1.83 remedies …. 1.7–1.18

C

Capacity to marry …. 5.26, 5.28 freedom to marry …. 5.29 marriageable age …. 5.34–5.44 differentiation between sexes …. 5.35 historical background …. 5.34 lowering of age …. 5.36–5.44 under-age persons …. 5.34 mental incapacity …. 6.45–6.51 degrees of unsoundness …. 6.47 intoxication …. 6.49 summary of law …. 6.45 test to determine …. 6.46, 6.50 unsoundness of mind …. 6.48 void marriages …. 6.45–6.51 overview …. 5.28 prohibited relationships …. 5.30–5.33 historical background …. 5.30 uncles and nieces …. 5.33 Case assessment conferences …. 2.47–2.50 Celebrants see Marriage celebrants Ceremony of marriage historical background …. 4.19, 5.21–5.22 mistake …. 6.40, 6.44 second marriage ceremonies …. 5.78–5.80 solemnisation …. 5.53, 5.56 Child abduction see International child abduction Child abuse see also Family violence allegations of …. 2.26, 3.1 behaviour constituting …. 3.28 causes …. 3.30–3.32 child protection Commonwealth laws …. 3.45–3.53 state intervention …. 3.43–3.44 Columbus Pilot …. 3.54 criminal prosecution …. 3.28 criteria …. 3.3 definitions …. 3.3, 3.27–3.29 expansion of …. 3.3

uniformity of …. 3.27 domestic violence and …. 3.1, 3.31 effects …. 3.30–3.32 female genital mutilation …. 3.29 government bodies, establishment …. 3.5 incidence …. 3.30–3.32 integrated multi-disciplinary approach …. 3.54 legal reforms …. 3.5 mandatory reporting Family Law Act …. 3.38–3.42 state or territory laws …. 3.36–3.37 National Association for the Prevention of Child Abuse and Neglect Inc (NAPCAN) …. 3.5 National Child Protection Council …. 3.5 National Framework for Protecting Australia’s Children 2009-20 …. 3.5 neglect …. 3.27 physical punishment as …. 3.28 prevention of …. 3.38 Project Magellan …. 3.54 remedies for victims of …. 3.33 removal of child from care of parents …. 3.34–3.35 sexual abuse see Sexual abuse state and territory laws …. 3.33–3.35 Child care costs of providing …. 11.13, 11.76 earning capacity and …. 12.5 Child counselling see Family counselling Child custody see also International child abduction; Parental responsibility; Parenting orders best interests principle see Best interests of the child change of name …. 9.126–9.130 child-related proceedings …. 8.35–8.39 considerations in exercise of discretion …. 9.24–9.85 Aboriginal children …. 9.78–9.85 biological parents, role of …. 9.55–9.62 conduct of parties …. 9.63–9.77 credit, findings as to …. 9.25 family violence, protection from …. 9.28–9.39 hidden issue, as …. 9.33

importance of …. 9.34–9.36 unacceptable risk …. 9.31–9.32 grandparents …. 9.55 homosexuality HIV/AIDS …. 9.70 overview …. 9.69–9.70 kidnapping …. 9.66 matrimonial conduct …. 9.64–9.65 meaningful relationship with both parents, benefit to child …. 9.27 overview …. 9.24–9.25 primary versus additional considerations …. 9.26 religion …. 9.71–9.77 siblings, separation of …. 9.50–9.54 status quo, disturbing …. 9.46–9.49 third parties, role of …. 9.55–9.62 Torres Strait Islander children …. 9.78–9.85 unconventional lifestyle …. 9.67–9.68 views of child …. 9.40–9.45 custody orders see Parenting orders maturing minors …. 8.29–8.34 overview …. 9.1 relocation cases …. 9.116–9.125 sexual abuse allegations …. 9.99–9.115 shared parenting attachment theory …. 9.16–9.17 maternal custody, historical preference for …. 9.10–9.15 overview …. 9.11 presumption of …. 9.5–9.7 exceptions …. 9.6 relocation cases …. 9.125 research on benefits of …. 9.18–9.19 s 65DAA …. 9.9, 9.21–9.23 social science research, use as aid in exercise of discretion …. 9.20 ‘spend time with’ orders …. 9.86–9.98 children not wanting to spend time with parents …. 9.95–9.96 intractable nature of …. 9.97–9.98 orders for children to spend time with non-parents …. 9.92–9.94 orders not permitting children to spend time with parents …. 9.86–9.91

statutory framework …. 9.2–9.4 Child of the marriage adoption and …. 4.48–4.51 Commonwealth’s powers …. 4.30, 4.35–4.37, 4.41, 4.49 adoption …. 4.48–4.51 jurisdiction …. 4.108 wardship jurisdiction …. 4.57 definition …. 4.30, 4.41 divorce orders …. 6.99, 10.25–10.26, 12.42 paternity …. 6.102 unborn children …. 6.98 orders affecting, consideration …. 14.62 property orders and change of circumstances …. 15.74 step-children …. 11.32–11.38 third parties …. 4.52–4.55 unborn children …. 6.98 Child support adult children see Adult children agreements for …. 11.90 arrears …. 11.17 cessation of …. 11.31, 11.93 change of circumstances …. 15.74 contributions, determination of …. 11.13 duration of …. 10.38 enforcement of …. 10.39 ex-nuptial children …. 1.55 Family Law Act …. 11.6–11.17 form of maintenance orders …. 11.14 interim …. 10.19 modification of …. 10.37 necessary financial support, determination of …. 11.10–11.12 considerations …. 11.11 objectives of …. 11.8 ongoing nature of obligation …. 11.15 overview …. 11.1–11.6 parental obligations …. 11.9 periodic …. 11.14 private arrangements for …. 11.89–11.92

property distribution and …. 12.42, 14.63 public resources, and …. 10.34 reforms …. 11.39, 11.45–11.47 background to …. 11.40–11.44 residual areas …. 11.5 spouse maintenance, and …. 10.3, 10.30, 10.40, 10.43 termination of obligation …. 11.16 transition period …. 11.4 Child Support Agency assessment …. 11.76 establishment …. 11.39 powers of enforcement …. 11.55 Child Support Scheme administrative assessment of …. 11.61–11.85 children applicable to …. 11.63 departure from …. 11.74–11.85 changes under Pt 6A …. 11.84 high costs of maintenance or contact with child …. 11.80 overview …. 11.74–11.76 significantly reduced capacity to provide support …. 11.77–11.79 travel costs …. 11.80 unjust and inequitable determinations …. 11.81–11.83 varying …. 11.85 duration of child support …. 11.70 objectives of …. 11.62 overview …. 11.61–11.62 persons entitled to apply for …. 11.64 persons liable for …. 11.65 processing of applications …. 11.68–11.69 recovery of wrongly paid money …. 11.66–11.67 statutory formula …. 11.71–11.73 taxation and …. 11.81 assisted conception procedures and …. 7.25 Australian Tax Office, links with …. 11.48 background to introduction of …. 11.40–11.44 Child Support Register …. 11.48 form of …. 10.36 formula, statutory …. 11.47

historical background …. 11.40–11.44 legislation …. 11.48 lump-sum payments …. 11.88 orders other than in periodic form …. 11.86–11.88 overview …. 11.39 parent, meaning as to …. 7.25–7.26 presumptions of parentage Child Support Assessment Act 1989 under …. 7.9, 7.26 presumptions of paternity Child Support Assessment Act 1989 under …. 7.9, 7.26 reform of …. 11.45–11.47 registration and collection …. 11.48–11.60 departure prohibition orders …. 11.56 distribution of payments …. 11.59 employer withholding …. 11.57–11.58 enforcement …. 11.51–11.59 objectives of …. 11.49–11.50 objects …. 11.49–11.50 overview …. 11.48 payment …. 11.51–11.59 recovery of debts …. 11.54 registration of liabilities …. 11.51, 11.53 social security, associated changes to …. 11.60 social welfare recipients …. 11.52 step-parent liability for …. 11.32–11.38 taxation and administrative assessment …. 11.81 calculation of support …. 11.72–11.73 enforcement of support …. 11.55 termination of obligation …. 11.16 Child welfare see Welfare of children Child-related proceedings see also Family counselling; International child abduction Australian Law Reform Commission …. 8.128 child custody …. 8.35–8.39 definition …. 8.69 enforcement of orders …. 8.126–8.148 historical background …. 8.126–8.128 imprisonment …. 8.137–8.138, 8.140

legislative framework …. 8.129–8.141 location orders …. 8.146–8.147 non-compliance …. 8.142 recovery orders …. 8.148 removal of children from Australia …. 8.143–8.145 expert evidence …. 8.87–8.89 Family Law Act …. 8.1, 8.13, 8.128 enforcement of orders …. 8.128 independent children’s lawyers (ICLs) …. 8.82 interim orders …. 8.100 less adversarial trials (LAT) …. 8.69 overview …. 8.8–8.9 parental responsibility …. 8.36 family reports …. 8.90–8.93 family violence …. 3.52 historical background …. 8.5–8.15 independent children’s lawyers (ICLs) …. 8.72–8.89 circumstances where may be appointed …. 8.75–8.76 discharge of …. 8.86 expert evidence …. 8.87–8.89 Guidelines …. 8.85 overview …. 8.72–8.74 role of …. 8.77–8.85 interim orders …. 8.98–8.102, 10.19 paramount interest principle …. 8.100 parenting orders …. 3.24, 8.98–8.101 presumption of shared responsibility …. 8.62, 8.100 relocation cases …. 8.101 residence …. 8.101 sexual abuse allegations …. 8.102 jurisdictional requirements …. 8.44 key features of Pt VII …. 8.17–8.18 less adversarial trials (LAT) …. 8.69–8.71 orders …. 8.94–8.108 contravention of …. 8.129–8.136 interim orders …. 8.98–8.102 least likely to lead to further proceedings …. 8.96–8.97 overview …. 8.94–8.95

variation of orders …. 8.103–8.108 overview …. 8.1 parental responsibility …. 8.19–8.39 content of …. 8.20–8.23 definition …. 8.19 joint versus several responsibility …. 8.25–8.27 persons having …. 8.24 reallocation of …. 8.35–8.39 scope of …. 8.28–8.34 parenting agreements …. 8.40–8.41 parenting orders …. 8.45–8.54 access orders …. 8.51–8.52 Commonwealth Information Orders …. 8.146–8.147 contact orders …. 8.51–8.52 family violence orders, interrelationship with …. 8.109–8.115 interim orders …. 8.98–8.102 overview …. 8.45–8.46 proceedings in respect of …. 8.53–8.54 residence orders …. 8.47–8.50 reallocation of parental responsibility …. 8.35–8.39 scope of operation of Pt VII …. 8.16 welfare jurisdiction …. 8.116–8.125 who may institute proceedings …. 8.42–8.43 Children see also Parentage Aboriginal descent …. 9.78–9.85 adoption see Adoption adult see Adult children age, relevance to wishes of child …. 8.29–8.34 artificial conception see Assisted conception assisted conception see Assisted conception best interests of see Best interests of the child change of name …. 9.126–9.130 consent to marriage of …. 5.45–5.51 counselling see Family counselling divorce, arrangements for children in …. 6.97–6.102 domicile …. 4.106 ex-nuptial see Ex-nuptial children exposure to family violence …. 3.3

family law regulation, as basis of …. 1.64–1.65 family violence see Family violence illegitimate see Ex-nuptial children immigrants, detention of …. 4.66, 8.4, 8.33, 8.125 international child abduction …. 8.149–8.160 non-therapeutic sterilisation of …. 8.117–8.124 proceedings in respect of see Child-related proceedings removal from Australia …. 8.143–8.145 representation of see Independent children’s lawyers rights of see Best interests of the child; United Nations Convention on the Rights of the Child status of assisted conception …. 7.17 filius nullius …. 7.3 historical background …. 7.3–7.4 illegitimate children …. 7.3 legislation …. 7.5 wardship see Wardship jurisdiction welfare of see Welfare of children Civil partnerships see also De facto relationships Australian Capital Territory …. 1.62, 5.119 overview …. 5.119 Queensland …. 5.119 termination of …. 6.126 registration of …. 1.26 ‘Clean break’ principle …. 10.3, 10.18, 13.7–13.8 Cloning …. 7.27 legislation …. 7.32 Council of Australian Governments (COAG) legislation …. 7.32 prohibitions on …. 7.31–7.32 therapeutic cloning …. 7.32 Cohabitation see also De facto relationships parentage presumption …. 7.8 spousal support …. 10.31 Collaborative law …. 2.20 Colonial society de facto relationships …. 1.54 overview …. 1.35

transportation …. 1.17 Commonwealth Constitution see Constitution Commonwealth’s powers …. 4.1–4.110 adoption …. 4.48–4.51, 4.90 injunctions to restrain …. 4.48 artificial conception …. 7.31–7.32 child abuse …. 3.7, 3.45–3.53 child of the marriage …. 4.30, 4.35–4.37, 4.41, 4.49 adoption …. 4.48–4.51 jurisdiction …. 4.108 wardship jurisdiction …. 4.57 constitutional challenges …. 4.31–4.46 Farrelly v Farrelly …. 1.40, 4.32, 4.34 resulting amendments …. 4.40–4.46 Russell v Russell …. 1.32, 1.40, 4.20, 4.31–4.46 stamp duty exemptions …. 4.46 construction of provisions …. 4.3 de facto relationships …. 1.55, 1.57 constitutional limitations …. 1.55 referral of power by states …. 1.55, 1.57 division of power …. 1.55 domicile …. 4.109 domicile as basis of jurisdiction …. 4.105–4.110 enumerated powers …. 4.2 ex-nuptial children …. 1.45, 7.6 external affairs power …. 4.66, 8.4 family law …. 4.4 constitutional challenges …. 4.31–4.46 Family Law Act and …. 4.28–4.46 overview …. 4.28–4.30 Russell v. Russell effects of …. 4.40–4.46 overview …. 4.31–4.39 family violence …. 3.7 incidental power …. 1.35, 4.1–4.2 limits of federal jurisdiction adoption …. 4.48–4.51 ‘child of the marriage’ …. 4.52–4.55

other proceedings …. 4.69 overview …. 4.47 third parties and …. 4.52–4.55 wardship …. 4.56–4.64 welfare jurisdiction limits of …. 4.65–4.68 wardship and …. 4.56–4.64 marriage power …. 1.55, 4.11–4.20, 4.56–4.57 constitutional challenges …. 4.31–4.46 exercise of power …. 4.10 maintenance …. 10.18 same-sex marriages …. 1.61 matrimonial causes power …. 1.38, 1.55, 4.21–4.27 child of the marriage …. 4.30, 4.35–4.37, 4.41 constitutional challenges …. 4.31–4.46 definition of matrimonial cause …. 4.21–4.24, 4.29, 4.35, 4.42 exercise of power …. 4.10 matrimonial property …. 4.25, 4.27 matrimonial property proceedings …. 4.45 scope of matters …. 4.25 overcoming limits of federal jurisdiction accrued jurisdiction …. 4.31, 4.84–4.88 associated jurisdiction …. 4.6, 4.83 cross-vesting of jurisdiction …. 4.71, 4.99–4.101 Family Court of Western Australia …. 4.77–4.80 overview …. 4.70–4.71, 4.81–4.82 referral of power …. 4.89–4.92 state court involvement …. 4.72 state family courts …. 4.73–4.76 overview …. 4.1–4.10 private rights …. 4.8 states and territories …. 4.56 tort actions …. 4.69 wardship jurisdiction …. 4.56–4.57 Community of property property division system …. 12.2, 12.24 economic justice and …. 12.3 types of systems

deferred …. 12.3 full or immediate …. 12.3 Compensation awards …. 14.55 Conciliation …. 2.47–2.50 Conduct best interests principle and …. 9.63 matrimonial …. 9.64–9.65 unconventional lifestyle …. 9.67–9.68 spousal support, entitlement to …. 10.33 Confidentiality provisions best interests of the child …. 2.62 dispute resolution …. 2.57–2.65 family counselling …. 2.57–2.65 Consanguinity see Prohibited relationships Consent orders financial affairs …. 15.37–15.39 judicial scrutiny …. 15.38–15.39 overview …. 15.37 property distribution …. 15.37–15.39 vary, consent to …. 15.75 varying orders made with consent …. 15.76 Consent to marry …. 5.26 absence of real …. 6.25–6.26 duress …. 6.27 effect of duress …. 6.28 extension of principle …. 6.29 relaxation of test …. 6.30 social considerations …. 6.34 fraud …. 6.31, 6.35–6.36, 6.38 extension of principles …. 6.32–6.34 intention …. 6.35 mental reservations, and …. 6.37 mistake …. 6.33, 6.35, 6.39–6.40 mistake as to ceremony …. 6.40, 6.44 mistake of identity …. 6.40–6.43 social considerations …. 6.34 minors, consent to marriage of …. 5.45–5.51 nullity of marriage for absence of …. 6.25–6.26

presumption of consent …. 6.26 Consortium vitae de facto relationship …. 5.94, 5.101 elements …. 6.61 separation …. 6.60–6.64 irretrievable breakdown …. 6.79 living under same roof …. 6.64, 6.76, 6.83 Constitution see also Commonwealth’s powers division of powers …. 1.55 incidental power …. 1.35, 4.2 marriage …. 4.8–4.9 overview …. 4.1–4.2 same-sex marriages …. 1.61 Consular marriages …. 5.57 Consummation of marriage …. 5.21 Contact orders see also Access orders; ‘Spend time with’ orders non-parents …. 8.51 residence-contact orders …. 8.52 Contempt parenting orders, contravention of …. 8.141 Contributions additional factors …. 14.56–14.64 assessment …. 14.7–14.8 asset-by-asset approach …. 14.16–14.17 global approach …. 14.16–14.17 compensation awards …. 14.55 equality as starting point …. 14.18–14.19 family violence …. 14.24, 14.37–14.44 Kennon contributions …. 14.24, 14.41 public policy …. 14.44 financial …. 14.11 financial misconduct …. 14.33–14.36 gifts …. 14.51 identification, discretion in …. 14.9–14.15 financial …. 14.11 non-financial …. 14.12 welfare of the family, to …. 14.13–14.15 inheritances …. 14.52–14.53

initial …. 14.45–14.47 judicial discretion …. 14.7–14.8, 14.20, 14.68 negative …. 14.33–14.36 non-financial …. 14.12 partnership approach …. 12.13, 14.21–14.23, 14.50 post-separation …. 14.48–14.50 special …. 14.14, 14.24–14.32 welfare of the family …. 14.13–14.15, 14.21–14.23 windfalls …. 14.54 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) …. 3.6 Co-operative federalism …. 4.81 Costs orders enforcement of order …. 1.77–1.78, 8.15, 8.133–8.136 pre-action procedures, non-compliance …. 2.34 Council of Australian Governments (COAG) human cloning and embryo research legislation …. 7.32 Counselling family consultants …. 2.43–2.46 family counselling admissibility of evidence …. 2.57–2.65 confidentiality …. 2.57–2.65 overview …. 2.53–2.56 family reports …. 8.90–8.93 Court orders see Child-related proceedings; Parenting orders; Spouse maintenance Courts see Family Court of Australia; Federal Circuit Court; State and territory courts Creditors spouse maintenance, and …. 10.32 Cross-vesting of jurisdiction constitutional challenges …. 4.99–4.101 constitutional limitations …. 4.71, 4.99 partial invalidity of scheme …. 4.102–4.103 remedial legislation …. 4.104 criticisms …. 4.99 impact of partial demise …. 4.102–4.103 legislation …. 4.93–4.94 construction …. 4.97 intent and scope …. 4.94

material sections …. 4.96 purpose of legislation …. 4.95 remedial legislation …. 4.104 onus …. 4.95 overcoming limits of federal jurisdiction …. 4.31, 4.93–4.104 overview …. 4.93 property distribution and …. 12.40–12.41 Cruelty grounds of divorce …. 1.28–1.30, 6.56 intent to be cruel …. 1.31 protection of spouse …. 1.32 Custody see Child custody Customary marriages see Aboriginal customary marriages

D De facto relationships …. 5.86–5.117 see also Civil partnerships Aboriginal customary marriages …. 5.9 assisted conception …. 7.17 parentage …. 7.18 breakdown of relationships …. 10.46 definition …. 6.117 financial consequences …. 10.2 what constitutes …. 6.118–6.125 circumstances of relationship …. 5.106–5.113 children …. 5.111 financial relationship …. 5.109 mutual commitment, degree …. 5.110 property, acquisition and use of …. 5.110 public reputation …. 5.113 registration …. 5.112, 5.116–5.117 sexual relationship …. 5.108 civil partnerships …. 5.119 close and caring personal relationships …. 5.118 Commonwealth’s power …. 1.55, 1.57 constitutional limitations …. 1.55 referral by states …. 1.55, 1.57 ‘couple living together on genuine domestic basis’ …. 5.100–5.104

declarations of …. 5.115 definition under FLA …. 5.94–5.97 discrimination …. 1.56 duration of relationship …. 5.114 equality, jurisprudence of …. 12.18 ex-nuptial children …. 1.55–1.56 families based on …. 1.54–1.59 Family Law Act …. 5.91–5.93, 12.2, 12.21–12.22 jurisdiction in property matters …. 12.43 de facto financial cause, definition …. 12.43 duration of …. 12.44 existence of, establishing …. 12.44 geographical requirements …. 12.45 threshold conditions …. 12.44 s 4AA inquiry …. 5.98–5.99 termination of civil partnerships …. 6.126 overview …. 6.113–6.116 registered relationships …. 6.125–6.126 female partners …. 1.60 financial protection …. 1.55 financial support …. 10.46–10.63 after Pt VIIAB …. 10.51–10.61 cessation of maintenance orders …. 10.60 child bearing expenses …. 10.62–10.63 enforcement of maintenance orders …. 10.61 geographical requirements …. 10.55 modification of maintenance orders …. 10.59 overview …. 10.46–10.47 powers of court …. 10.56–10.58 prior to Pt VIIAB …. 10.48–10.50 s 90SF(3) factors …. 10.56–10.58 threshold issues …. 10.52–10.54 time limits …. 10.52–10.54 historical background …. 1.55, 7.3 ex-nuptial children …. 1.56 female financial protection …. 1.55 property rights …. 12.17–12.22

legal recognition …. 1.58 arguments against …. 1.60 marriage, distinction …. 10.47 legislation …. 1.55–1.57, 1.60, 10.47 Commonwealth …. 1.55 state legislation …. 1.55–1.57 multiple relationships …. 5.104 overview …. 1.54, 5.2, 5.86–5.90 property distribution see Property distribution property rights …. 5.88 putative spouse …. 1.56 registration of …. 1.58, 5.116–5.117 same-sex couples …. 5.90 states and territories …. 1.55–1.57 Australian Capital Territory …. 1.62 legislation …. 12.20 New South Wales …. 1.57 referral of powers …. 1.55, 1.57 South Australia …. 1.56 Tasmania …. 1.55 termination of …. 6.113–6.125 breakdown of relationship definition …. 6.117 what constitutes …. 6.118–6.125 De facto spouse maintenance cessation of order …. 10.60 child bearing expenses …. 10.62 baby bonus …. 10.63 close personal relationships …. 5.118 enforcement of orders …. 10.61 factors for consideration …. 10.56 geographical requirements …. 10.55 jurisdiction …. 1.57 marital breakdown, distinction …. 10.47 overview …. 10.3, 10.31, 10.47 property distribution, and …. 10.57 reforms …. 10.47, 10.51 social security, and …. 10.58

state and territory legislation …. 10.48–10.49 divergence in approach …. 10.50 threshold issues …. 10.52–10.54 variation of orders …. 10.59 Death declaration of death …. 6.20 genetic donors, use of material posthumously consent …. 7.30 gametes …. 7.29 sperm …. 7.30 grounds for divorce …. 6.19 parentage testing orders and …. 7.14 property proceedings, a party to …. 12.35–12.36 Deceased parents parentage testing orders …. 7.14 Deceased spouse assisted conception …. 7.30 Declarations of property interests ‘catch-all’ provisions …. 13.10 dispute, requirement for …. 13.11 equitable interests …. 13.11 Family Court power to make …. 13.9 operation of provisions …. 13.9 s 78/90SL Family Law Act …. 13.9 s 79/90SM, wider application of …. 13.10 third parties, application to …. 13.11 Declarations of validity ancillary proceedings …. 6.110 de facto relationships, of …. 5.115 declaration of death …. 6.20 foreign divorce or marriage …. 6.106 jurisdiction …. 6.5 overview …. 6.3, 6.107 property interests, of …. 13.9–13.11 transsexuals …. 6.108 validity of marriage, of …. 6.107–6.108 Decrees see Divorce orders Defence forces

overseas marriages …. 5.25, 5.53, 5.59 Definitions best interests of the child …. 8.57 breakdown of de facto relationship …. 6.117 child …. 4.30, 4.41, 6.101–6.102 child abuse …. 3.27–3.29 child of the marriage …. 4.30, 4.41 childbirth maintenance period …. 10.62 child-related proceedings …. 8.69 de facto relationships …. 5.94–5.98 breakdown of …. 6.117 dispute resolution …. 2.8 family …. 1.50 location orders …. 8.146 marriage …. 1.52, 1.61, 4.3 matrimonial cause …. 4.21–4.24, 4.29, 4.35, 4.40, 4.42, 12.29–12.32 parent …. 7.20–7.21 parental responsibility …. 8.19 Desertion constructive desertion …. 1.29 divorce for …. 6.62–6.63 overview …. 1.29, 6.63 separation, and …. 6.63–6.64, 6.79 two households tests …. 6.74 Detention see Immigration detention Diplomats, foreign immunity from Family Court jurisdiction, …. 12.39 Disability see also Sterilisation of intellectually disabled adult children, child support for on basis of …. 11.19 Disclosure failure to …. 15.71 full and frank …. 13.33 Discretion see Judicial discretion Dispute resolution …. 2.1–2.65 admissibility of evidence …. 2.57–2.65 adversary system, and …. 2.1 advisers, obligations on …. 2.51–2.52 arbitration …. 2.22–2.24

award …. 2.22 categories of arbitration …. 2.22 overview …. 2.22, 2.24 procedure …. 2.23 reforms …. 2.24 bargaining in the shadow of the law …. 15.35 collaborative law …. 2.20 conciliation …. 2.47–2.50 confidentiality …. 2.57–2.65 counselling see Counselling court system, within case assessment conferences …. 2.47–2.50 conciliation …. 2.47–2.50 family consultants …. 2.43–2.46 overview …. 2.48 definition …. 2.8 dispute management …. 2.21 family consultants …. 2.43–2.46 family counselling in respect of children admissibility of evidence …. 2.57–2.65 confidentiality …. 2.57–2.65 overview …. 2.53–2.56 Family Law (Dispute Resolution Practitioners) Regulations 2008 (Cth) …. 2.11 family violence and …. 2.35–2.41 maintenance …. 2.33–2.34 obligations on advisers …. 2.51–2.52 out of court dispute resolution arbitration …. 2.22–2.24 collaborative law …. 2.20 dispute management …. 2.21 Family Relationship Centres …. 2.3, 2.7, 8.12 legal aid conferences …. 2.21 overview …. 2.5–2.6, 2.19 overview …. 2.1–2.4 parenting disputes …. 2.27–2.32 power imbalance …. 2.16, 2.35–2.36 practitioners …. 2.8–2.10 processes

child-inclusive mediation …. 2.17–2.18 facilitative mediation …. 2.14–2.16 negotiation …. 2.13 overview …. 2.12 pre-action procedures overview …. 2.25–2.26 parenting disputes …. 2.27–2.32 property settlement and maintenance …. 2.33–2.34 property settlement …. 2.33–2.34, 12.27 suitability of …. 2.35–2.41 Divorce absence of parties …. 6.8 adultery …. 1.25–1.27 advent of …. 1.19–1.24 commoners, for …. 1.15–1.18 consolidation of laws …. 1.39 Constitution declarations of death …. 6.20 declarations of validity …. 6.107 foreign divorces …. 6.106 cruelty …. 1.28–1.30 desertion …. 1.28–1.30 fault-based divorce …. 1.20–1.22, 1.40, 6.1, 6.55, 6.57, 10.12 spouse maintenance, and …. 10.13–10.16 foreign divorces …. 6.104 grounds of divorce see Grounds of divorce historical development …. 1.5–1.6, 1.11–1.24, 1.38–1.39, 1.53, 6.55 arguments against divorce …. 1.19, 6.2 consolidation of laws …. 1.39 demands for change …. 1.20 discrimination against the poor …. 1.16 double standards …. 1.21, 1.24 fault-based divorce …. 1.20–1.22, 1.40, 6.1, 6.55, 6.57, 10.12 gender inequality …. 1.24 incompatibility …. 6.56 Industrial Revolution …. 1.6, 1.20 judicial separation …. 1.12, 1.25 limited availability …. 1.21

Matrimonial Causes Act …. 1.38–1.39, 4.21 parliamentary divorce …. 1.11–1.14, 1.16 pre-1975 attitudes …. 6.56 incurable insanity …. 1.28–1.30 institution of proceedings …. 6.7–6.9, 6.59 invalid marriages and …. 6.105–6.106 irretrievable breakdown …. 1.31–1.34, 6.59 joint applications …. 6.7 absence of parties …. 6.8 jurisdiction …. 6.4–6.6 nexus requirements …. 6.6 no-fault divorce overview …. 6.2 spousal support and …. 10.16–10.17 nullity proceedings, and …. 6.104 orders …. 6.90–6.103 children, arrangements for …. 6.97–6.102 effective date …. 6.91–6.96 overview …. 6.90 protective nature of …. 6.100 rescission of …. 6.103 overview …. 6.1–6.3, 6.55–6.58 parliamentary divorce …. 1.11–1.14 discrimination against the poor …. 1.16 male-centred procedure …. 1.14 procedure …. 1.13 rates of divorce …. 1.41, 6.1 separation see Separation two year marriages …. 6.88–6.89 void marriages and …. 6.105–6.106 voidable marriages, and …. 6.10 Divorce orders arrangements for children …. 6.94, 6.97 child of the marriage …. 6.101–6.102 court’s considerations …. 6.98–6.99 paternity …. 6.102 requirements …. 6.97 unborn children …. 6.98

date of effect …. 6.9, 6.91 decree absolute …. 6.90–6.91 appeals …. 6.92–6.94 registry errors …. 6.94 setting aside …. 6.93–6.95 decree nisi …. 6.90–6.91 overview …. 6.9, 6.90 remarriage prior to final order …. 6.16, 6.91 rescission of orders …. 6.103 time interval …. 6.92 Domestic relationships see De facto relationships Domestic violence see Family violence Domicile acquisition …. 4.106 as basis of jurisdiction …. 4.105–4.110 children …. 4.106 common law, at …. 4.106 Commonwealth’s power …. 4.109 domicile of choice …. 4.106 domicile of origin …. 4.106 Family Law Act …. 4.108 jurisdiction, and …. 4.105–4.110 Commonwealth’s power …. 4.109 Family Law Act …. 4.108, 4.112 married women …. 4.106 matrimonial causes …. 4.108 institution of proceedings …. 4.107 nullity of marriage …. 4.107 overview …. 4.105 residence, distinction …. 4.105 uniform legislation …. 4.110 Duress consent to marry …. 6.27 effect of duress …. 6.28 extension of principle …. 6.29 relaxation of test …. 6.30 social considerations …. 6.34 nullity of marriage for …. 6.27–6.30

setting aside financial agreements …. 15.50

E Ecclesiastical courts …. 1.9–1.10, 1.12–1.13, 1.21–1.22, 1.24, 10.7–10.8 Education see also Child support adult children, child support for to enable completion of …. 11.20–11.30 Embryos see also Frozen embryos Council of Australian Governments (COAG) human cloning and embryo research legislation …. 7.32 Enforcement of orders child-related orders child support …. 11.51–11.59 costs orders …. 1.77–1.78, 8.15, 8.133–8.136 child-related proceedings …. 8.126–8.148 contempt …. 8.141 historical background …. 8.126–8.128 imprisonment …. 8.137–8.138, 8.140 legislative framework …. 8.129–8.141 location orders …. 8.146–8.147 non-compliance …. 8.142 recovery orders …. 8.148 removal of children from Australia …. 8.143–8.145 de facto spouse maintenance, and …. 10.61 family violence, injunctions …. 3.19–3.20 spouse maintenance orders …. 10.39 Engagement …. 5.16–5.20 breach of promise …. 5.16 assessing damage …. 5.18–5.19 engagement ring …. 5.20 overview …. 5.16 recovery of gifts …. 5.20 Equality Australian Law Reform Commission analysis …. 12.18 jurisprudence of …. 12.18 Equity principles of …. 12.7, 12.14

Estoppel paternity determination …. 6.102 Evidence appeals …. 4.120, 4.127 best interests of the child, and …. 8.71–8.72 child-related proceedings …. 8.87–8.89 dispute resolution …. 2.57–2.65 family counselling communications …. 2.57–2.65 less adversarial trial …. 8.69 parentage, of …. 7.10–7.14 sexual abuse allegations …. 9.113 Ex-nuptial children Commonwealth’s powers …. 1.45, 7.6 de facto relationships …. 1.55–1.56 discrimination …. 1.56 Family Law Act, application to …. 7.6 historical background …. 7.3 legal disabilities …. 1.56 removal …. 1.55 legitimation of by marriage …. 1.37, 5.84–5.85, 7.3 maintenance …. 1.55 status of …. 7.3 subsequent marriage of parents …. 1.37 Expert evidence child-related proceedings …. 8.87–8.89

F Family colonial society …. 1.35 transportation …. 1.17 de facto relationships, based on …. 1.54–1.59 definition …. 1.50 historical background …. 1.1 colonial society …. 1.17, 1.35 double standards …. 1.17 importance in society …. 1.35 international context …. 1.35

modern perception …. 1.49–1.51 overview …. 1.1, 1.35, 1.49–1.51 Royal Commission on Human Relationships 1977 …. 1.50 same-sex couples …. 1.60–1.63 society, and …. 1.1 Family companies property distribution and …. 13.23–13.25, 15.27–15.28 Family consultants dispute resolution …. 2.43–2.46 family reports …. 8.90–8.93 Family counselling admissibility of evidence …. 2.57–2.65 confidentiality …. 2.57–2.65 overview …. 2.53–2.56 Family Court of Australia see also Cross-vesting of jurisdiction accrued jurisdiction …. 4.84–4.88 appeals …. 1.45, 4.119–4.120 fresh evidence …. 4.120, 4.127 Full Court …. 4.120, 4.126, 4.128 High Court …. 4.120, 4.129 prerogative writs …. 4.129 special leave …. 4.129 judicial discretion …. 4.121–4.125 questions of law …. 4.120, 4.127 rehearings …. 4.120 single judge …. 4.127 Appellate Division …. 1.45, 4.113 de facto relationships …. 1.57 establishment …. 1.44–1.48, 4.113 Family Violence Best Practice Principles …. 3.11 Family Violence Strategy …. 3.11 Full Court, appeals to …. 4.126 general division …. 1.45, 4.113 historical background …. 1.44 judges …. 1.47 jurisdiction …. 1.45, 4.113 accrued jurisdiction …. 4.84–4.85 immigration detention …. 4.66, 8.4, 8.33, 8.125

overview …. 1.45–1.48, 4.111–4.112 proceedings …. 1.45–1.46 Project Magellan …. 3.54 shared parenting and …. 9.20 welfare jurisdiction …. 8.116–8.125 Family Court of Western Australia appeals …. 4.117, 4.128 Magistrates Court of Western Australia …. 4.127 establishment …. 1.48 jurisdiction …. 1.48, 4.116–4.118, 6.5 overview …. 1.48, 4.74, 4.76–4.80, 4.92 welfare jurisdiction …. 8.116 Family Courts appeals …. 4.119–4.129 Family Court of Western Australia …. 4.117 Federal Circuit Court …. 4.127 Full Court, to …. 4.128 High Court, to …. 4.129 nature of …. 4.119–4.125 single judge, to …. 4.127 Family Court of Australia see Family Court of Australia Family Court of Western Australia …. 1.48, 4.74, 4.76–4.80, 4.92, 4.116–4.118 Federal Circuit Court …. 4.114–4.115 overview …. 4.111–4.112 state family courts …. 4.73–4.76 states and territories …. 1.48 Family disputes see also Dispute resolution adversary system, and …. 2.1 Family law see also children as basis of regulation …. 1.64–1.65 Commonwealth’s powers …. 4.1 constitutional challenges …. 4.31–4.46 development in Australia …. 1.44–1.48, 2.1, 4.4 development of …. 1.35–1.48 dispute resolution see Dispute resolution Family Court of Australia …. 1.44–1.48 family violence and …. 1.66–1.79 matrimonial causes see Matrimonial causes

protective role …. 12.18 states and territories …. 4.8–4.9 Family Law Act accrued jurisdiction …. 4.85 assisted conception …. 7.17–7.19 best interests principle …. 8.64, 8.68, 9.29–9.30, 9.32, 9.37, 9.43 child-related proceedings …. 8.1, 8.13, 8.128 enforcement of orders …. 8.128 independent children’s lawyers (ICLs) …. 8.82 interim orders …. 8.100 less adversarial trials (LAT) …. 8.69 overview …. 8.8–8.9 parental responsibility …. 8.36 cohabitation, families based on …. 1.57 consent orders …. 15.37 Constitutional powers …. 4.28–4.46 overview …. 4.28–4.30 Russell v Russell effects of …. 4.40–4.46 overview …. 4.31–4.39 de facto relationships …. 5.91, 5.97, 12.2, 12.21–12.22 financial support …. 10.47, 10.51 dispute resolution …. 2.2–2.4, 2.12, 2.27, 2.52 divorce …. 6.7–6.9 domicile and …. 4.108 family courts …. 4.76 family violence …. 1.71, 1.74, 1.76, 1.78–1.79, 3.2, 3.11, 3.13, 3.27 fault, abolition of …. 1.40 financial agreements …. 15.35–15.60 generally …. 1.74–1.76 grounds of divorce …. 1.40 irretrievable breakdown …. 1.40 limits of federal jurisdiction …. 4.66, 4.90, 4.92, 4.103 maintenance agreements …. 15.40 matrimonial cause, definition …. 4.29 nullity of marriage …. 1.42–1.43, 6.6 overview …. 1.40–1.43, 4.28, 6.57 parentage presumptions …. 7.7–7.8

philosophy …. 6.57 principal achievements …. 1.40 principal relief under …. 12.37 property distribution and …. 13.12–13.13 setting aside property orders …. 15.68–15.69 change in child circumstances …. 15.74 child circumstances, change in …. 15.74 default …. 15.73 impracticability …. 15.72 miscarriage of justice …. 15.70–15.71 overview …. 15.68–15.69 transactions …. 15.29–15.31 setting aside transactions …. 15.29–15.31 bona fide purchasers …. 15.33 conditions precedent …. 15.31 sham transactions …. 15.33 ‘spend time with’ orders and …. 9.90, 9.93 spousal agreements see Financial agreements spousal support …. 10.3, 10.18, 10.30–10.31, 10.34–10.35 standing to make applications under …. 7.56 Supreme Courts …. 1.44 surrogacy under …. 7.45–7.49 Family Law Council Aboriginal and Torres Strait Islander clients, report as to …. 9.85 best interests principle and …. 8.68, 9.85 child-related proceedings enforcement of orders …. 8.128 independent children’s lawyers (ICLs) …. 8.75 overview …. 8.6–8.7 parenting orders, interrelationship with family violence orders …. 8.110–8.111 sterilisation of children report …. 8.122 dispute resolution and …. 2.20, 2.22, 2.24 family violence and …. 3.11, 3.50–3.51 ‘spend time with’ orders and …. 9.98 spousal support and …. 10.3, 10.44 Family Law Rules 2004 (Cth) child-related proceedings expert evidence …. 8.89

less adversarial trials (LAT) …. 8.70 dispute resolution and …. 2.12, 2.25, 2.33–2.34, 2.47–2.50 financial support of de facto partners and …. 10.61 property distribution and …. 13.30, 13.33 spousal support and …. 10.39 Family Relationship Centres …. 2.3, 2.7, 8.12 Family reports …. 8.90–8.93 Family support see Maintenance agreements Family violence see also Child abuse Addressing Violence: Education, Resources, Training (AVERT) …. 3.4 alteration of property interests …. 14.37–14.44 best interests principle …. 9.28–9.39 hidden issue, as …. 9.33 importance of …. 9.34–9.36 unacceptable risk …. 9.31–9.32 child exposure to …. 3.3 child protection injunctions as …. 3.16–3.18 relationship between Commonwealth and state or territory laws …. 3.45–3.53 state intervention for …. 3.43–3.44 strategies …. 3.54–3.55 Columbus Pilot (WA) …. 3.54 contributions …. 14.24, 14.37–14.44 public policy …. 14.44 definition of, new …. 3.3 dispute resolution …. 2.35–2.41 DOORS (Detection of Overall Risk Screen) …. 3.4 earning capacity, effect on …. 14.37 family law, and …. 1.66–1.79, 14.37–14.40 government inquiries …. 3.2 Time for Action report …. 3.2 injunctions …. 3.8–3.20 enforcement of …. 3.19–3.20 excluding party from home …. 3.15 overview …. 3.8–3.13 protection from violence and harassment, as …. 3.14 protection of children, as …. 3.16–3.18 international instruments …. 3.6

jurisdictional issues, Australia …. 3.7 Kennon contributions …. 14.24, 14.41–14.42 Law Reform Commission recommendations …. 3.4 no fault discourse …. 14.38 overview …. 3.1–3.5 Project Magellan …. 3.54 property distribution …. 12.27, 14.37–14.44 protection orders overview …. 3.18, 3.21–3.22 parenting orders, interrelationship with …. 8.109–8.115 recent developments …. 3.4 relationship between Commonwealth and state or territory laws overview …. 3.23–3.26 protection of children …. 3.45–3.53 Senate inquiry …. 3.4 spouse maintenance …. 12.27, 14.37–14.44 Time for Action report …. 3.2 Father Custodians, as …. 9.10–9.15 Fault-based divorce historical background …. 1.20–1.22, 1.40, 6.1, 6.55, 6.57, 10.12 spouse maintenance, and …. 10.13–10.16 Federal Circuit Court appeals …. 4.127 establishment …. 4.114 family law jurisdiction …. 4.115, 6.5 future of court …. 4.115 jurisdiction …. 4.114–4.115 overview …. 4.114–4.115 transfer of proceedings …. 4.115 Western Australia …. 4.115 Federal Court of Australia see also Cross-vesting of jurisdiction accrued jurisdiction …. 4.84 Female genital mutilation …. 3.29 Filius nullius …. 7.3 Financial agreements binding agreements …. 10.25 binding agreements which oust jurisdiction of court …. 15.44, 15.51–15.59

discretion, exercise of …. 15.59 formal requirements …. 15.52–15.57 legal advice …. 15.58 onus of proof …. 15.57 consent orders …. 14.37–15.39 encouragement of …. 15.35 enforceable between the parties …. 15.44 Family Law Act …. 15.41–15.44 Family Law Act (2000-present), under …. 15.41–15.44 formal requirements …. 15.45 inclusions in …. 15.46–15.48 law reform …. 15.60 maintenance see Maintenance agreements private ordering …. 15.36 reasons for entering …. 15.43 rectification …. 15.49 separation declaration …. 15.48 setting aside …. 15.49–15.50 grounds …. 15.50 settlement, to achieve …. 15.35 spousal maintenance …. 15.47, 15.60 superannuation agreements …. 15.12 third parties as parties to …. 15.48 time of entering into …. 15.43 types …. 15.44 Financial support see also Child support; De facto spouse maintenance; Spouse maintenance children …. 11.1–11.59 de facto partners …. 10.46–10.63 individual responsibility …. 10.2 marital status, and …. 10.2 married partners …. 10.3–10.45 overview …. 10.1 policy objectives …. 10.2 public resources, and …. 10.34–10.35 Flagging orders …. 15.9 Foreign marriages ancillary proceedings …. 6.110

annulments …. 6.104 declarations of validity …. 6.106 legal separations …. 6.104 private international law …. 6.110 recognition …. 5.60–5.73 at common law …. 5.71–5.72 local law and …. 5.67–5.70 overview …. 5.60–5.66 same-sex couples …. 5.73 Foreign nationals marriage of …. 5.27 Forum conveniens property distribution and …. 12.39 Fraud consent to marry …. 6.31, 6.35–6.36, 6.38 extension of principles …. 6.32–6.34 intention …. 6.35 mental reservations, and …. 6.37 mistake …. 6.33, 6.35, 6.39–6.40 mistake as to ceremony …. 6.40, 6.44 mistake of identity …. 6.40–6.43 social considerations …. 6.34 nullity of marriage for …. 6.31–6.39 setting aside financial agreements …. 15.50 Frozen embryos …. 7.28–7.29 nature of process …. 7.27 parentage disputes as to …. 7.28 parentage presumptions …. 7.28 research restrictions …. 7.31–7.32 status of embryos …. 7.28–7.29 storage and disposition …. 7.27 succession …. 7.29

G Gamete donors parentage status of …. 7.20 use of genetic material posthumously …. 7.29

consent …. 7.30 Gamete intrafallopian transfer …. 7.15 Gender inequality …. 1.6, 1.18, 1.24 caring for children, hours per day …. 12.7 economic consequences of marriage breakdown …. 12.5 family violence and contributions …. 14.38 pay gap …. 12.7 Workplace Gender Equality Agency …. 12.7 Genetic testing …. 7.16 Gifts contribution to property …. 14.51 engagement, recovery of …. 5.20 in anticipation of marriage …. 5.20 Grandparents child maintenance application by …. 11.6 divorce transition, helping child with …. 1.87 parenting disputes …. 1.64, 7.56, 8.5 parenting orders …. 8.42, 8.51, 8.53, 9.55–9.56 prohibited relationships …. 6.21 ‘spend time with’ orders …. 9.93–9.94 Grounds of divorce adultery …. 1.20–1.21, 1.23, 1.25–1.27 adulterous petitioners …. 1.26 commission by both parties …. 1.20, 1.26 discretion standards …. 1.26 double standards …. 1.24, 1.27 spouse maintenance …. 10.14 cruelty …. 1.28–1.30, 6.56 intent to be cruel …. 1.31 protection of spouse …. 1.32 death, presumption of …. 6.19 desertion …. 1.28–1.30, 6.63 constructive desertion …. 1.29 intention to desert …. 1.29 separation, and …. 6.63–6.64 Family Law Act …. 1.40 historical development …. 1.28–1.30, 6.1 adultery …. 1.20–1.21, 1.23, 1.25–1.27

Australia …. 4.2 cruelty …. 1.28–1.30 desertion for three years …. 1.28–1.30 Family Law Act …. 1.40 incompatibility …. 6.56, 6.73 incurable insanity …. 1.28–1.30 Matrimonial Causes Act …. 4.21, 6.55 public policy considerations …. 1.30 irretrievable breakdown see Irretrievable breakdown Matrimonial Causes Act …. 4.21, 6.55 divorces, granted, 1975 …. 1.41 presumption of death …. 6.19 separation …. 6.63 state and territory differences …. 1.36 widening of grounds …. 1.28–1.29 Guardianship see also Parental responsibility limits of federal jurisdiction …. 4.56–4.64 maturing minors …. 8.29–8.34

H High Court appeals …. 4.129 prerogative writs …. 4.129 special leave …. 4.129 Homosexuality see also Lesbians; Same-sex couples best interests principle and HIV/AIDS …. 9.70 overview …. 9.69–9.70 same-sex couples de facto relationships and …. 5.90 families …. 1.60–1.63 recognition of foreign marriages …. 5.73 Human reproduction see Assisted conception Human Rights and Equal Opportunity Commission assisted conception and …. 7.33 best interests principle and …. 9.81 child-related proceedings …. 8.4

National Children’s Commissioner …. 3.6

I Identification of interests in property companies …. 13.23 disclosure, requirement for full and frank …. 13.33 discretionary family trusts …. 13.23–13.25 financial resources …. 13.22 fundamental principle in property matters …. 12.31, 13.16 liabilities …. 13.31–13.32 notional adding back assets …. 13.26–13.29, 14.34 deliberate or reckless wasting …. 13.28, 14.34 legal fees …. 13.28 post-Stanford decisions …. 13.29 premature distribution …. 13.28 property definition …. 13.20 examples …. 13.21 totality of parties’ assets …. 13.19 valuing …. 13.30 Immigration detention …. 4.66, 8.4, 8.33, 8.125 Imprisonment parenting orders, contravention of …. 8.137–8.138, 8.140 In vitro fertilisation …. 7.15–7.16, 7.30–7.31 see also Assisted conception access to …. 7.33 child support liability …. 7.25–7.26 development of practice …. 7.16 frozen embryos and …. 7.28–7.29 legal consequences …. 7.16 maternity …. 7.16 older women and …. 7.34 parentage issues and …. 7.16 posthumous use of sperm …. 7.30 procedure …. 7.16 regulation …. 7.31 surrogacy …. 7.39

Incest marriage and …. 5.30–5.33 nullity of marriage for …. 6.21–6.22 Income see Child support Incurable insanity grounds of divorce …. 1.29 Independent children’s lawyers …. 8.72–8.89 circumstances for appointment …. 8.75–8.76 discharge of …. 8.86 expert evidence …. 8.87–8.89 Guidelines …. 8.85 interim orders …. 8.96 overview …. 8.72–8.74 role of …. 8.77–8.85 Inheritance see Succession Injunctions adoption, restraint …. 4.48 family violence …. 3.8–3.20 discretionary remedy …. 3.12 enforcement of …. 3.19–3.20 excluding party from home …. 3.15 overview …. 3.8–3.13 protection from violence and harassment, as …. 3.14 protection of children, as …. 3.16–3.18 property distribution …. 15.13–15.26 after Pt VIIIAA …. 15.18–15.22 disposition of property, restraining …. 15.15 overview …. 15.13–15.14 practical implications of PT VIIIAA …. 15.23–15.26 prior to Pt VIIIAA …. 15.16–15.17 third parties, against …. 15.16–15.19, 15.22–15.26 Insanity grounds of divorce …. 1.29 Intention separation …. 6.65, 6.69–6.71 separation, and …. 6.66, 6.68–6.69 communication of intention …. 6.70–6.71 proof of intention …. 6.70

Interim orders child-related proceedings …. 8.98–8.102 independent children’s lawyers …. 8.96 paramount interest principle …. 8.100 parenting orders …. 3.24, 8.98–8.101 presumption of shared responsibility …. 8.62, 8.100 relocation cases …. 8.101 residence …. 8.101 sexual abuse allegations …. 8.102 International child abduction actions to secure return …. 8.152 applications …. 8.151 best interests of the child …. 8.149 central authorities …. 8.150 child, definition …. 8.150 Commonwealth Central Authority …. 8.150 actions to secure return …. 8.151 exceptions to child’s return …. 8.156–8.159 grave risk, meaning …. 8.157 objections by child …. 8.158 past family violence …. 8.157 Hague Convention on Civil Aspects of International Child Abduction 1980 …. 8.149 inappropriate forum test …. 8.160 international convention …. 8.149 application …. 8.151 non-convention countries …. 8.160 orders for return of child …. 8.152 conditions on return …. 8.155 exceptions …. 8.156–8.158 overview …. 8.149 rights of custody, definition …. 8.153 wrongful removal or retention …. 8.153 International conventions see United Nations Convention on the Rights of the Child Intoxication mental incapacity, and …. 6.49 Invalid marriages ancillary proceedings …. 6.109–6.112 declarations of validity …. 6.107–6.108

divorce and …. 6.105–6.106 nullity of marriage and …. 6.105–6.106 under Marriage Act 1961 (Cth) …. 6.23–6.24 Irretrievable breakdown divorce for …. 6.59 establishing …. 6.60, 10.15 historical development …. 1.26, 1.31–1.34, 1.40 difficulties in implementation …. 1.33 justiciability of ground …. 1.34 Morton Commission …. 1.31, 1.33 period of separation …. 1.34 overview …. 1.40, 6.1, 6.57, 6.69 period of separation …. 1.34, 1.40, 6.72 continuity requirement …. 6.86 establishing …. 6.72 ‘kiss and make up’ clause …. 6.86–6.87 resumption of cohabitation …. 6.86–6.87 principles …. 6.57–6.58 separation …. 6.61 communication of intention …. 6.70–6.71 consortium vitae …. 6.65, 6.79 desertion, and …. 6.63–6.64, 6.74, 6.79 intention …. 6.66, 6.68–6.70 living separate and apart …. 6.68 living under same roof …. 6.73–6.83 period of separation …. 1.34, 1.40, 6.72, 6.86–6.87 resumption of cohabitation …. 6.68–6.69, 6.84–6.87 two-year marriages …. 6.89 spousal support and …. 10.15 spouse maintenance, and …. 10.16 statutory provisions …. 6.59 Issue estoppel paternity determination …. 6.102

J Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 (Cth) …. 4.43, 6.7, 8.128, 12.24, 15.41 Judicial discretion

alteration of property interests and …. 14.1, 14.7–14.8 binding rules …. 14.3–14.4 exercise of …. 14.2–14.6 guidelines …. 14.2–14.6 unpredictability …. 14.20 appeals …. 4.119–4.125 court’s approach …. 4.123–4.125 principles …. 4.125 substitution of decisions …. 4.123 best interests principle see Best interests of the child identification of contributions …. 14.9–14.15 financial …. 14.11 non-financial …. 14.12 welfare of the family, to …. 14.13–14.15 overview …. 4.119 property distribution …. 12.23–12.25 community of property regime …. 12.24 criticisms of …. 12.24 separate property regime …. 12.24 reallocation of parental responsibility …. 9.24–9.85 Judicial separation …. 1.12, 1.25 Jurisdiction accrued jurisdiction …. 4.31, 4.84–4.88 Family Court …. 4.84–4.88 ancillary proceedings …. 6.109, 6.112 associated jurisdiction …. 4.6, 4.83 cross-vesting of jurisdiction constitutional challenges …. 4.99–4.101 constitutional limitations …. 4.99 partial invalidity of scheme …. 4.103 remedial legislation …. 4.104 criticisms …. 4.99 impact of partial demise …. 4.102–4.103 legislation …. 4.93–4.94 construction …. 4.97 intent and scope …. 4.94 material sections …. 4.96 purpose of legislation …. 4.95

remedial legislation …. 4.104 matrimonial property proceedings …. 12.40–12.41 onus …. 4.95 overcoming limits of federal jurisdiction …. 4.31, 4.93–4.104 overview …. 4.93 property distribution and …. 12.40–12.41 declarations of validity …. 6.4 divorce …. 6.4–6.6 nexus requirements …. 6.6 domicile …. 4.105–4.110 Commonwealth’s power …. 4.109 Family Law Act …. 4.108, 4.112 domicile as basis of …. 4.105–4.110 Family Court of Australia …. 1.45, 4.113, 6.4 accrued jurisdiction …. 4.84–4.88 immigration detention …. 4.66, 8.4, 8.33, 8.125 Family Court of Western Australia …. 1.48, 4.116–4.118, 6.5 Family Law Act accrued jurisdiction …. 4.85–4.88 Federal Circuit Court …. 4.114–4.115, 6.4 limits of federal jurisdiction adoption …. 4.48–4.51 ‘child of the marriage’ …. 4.52–4.55 other proceedings …. 4.69 overview …. 4.47 third parties and …. 4.52–4.55 wardship …. 4.56–4.64 welfare jurisdiction limits of …. 4.65–4.68 wardship and …. 4.56–4.64 matrimonial causes …. 4.6, 4.10, 6.4 domicile …. 4.108 nexus requirements …. 6.6 nullity of marriage …. 6.4–6.6 overcoming limits of federal jurisdiction accrued jurisdiction …. 4.31, 4.84–4.88 associated jurisdiction …. 4.6, 4.83 cross-vesting of jurisdiction …. 4.31, 4.93–4.104

Family Court of Western Australia …. 4.77–4.80 overview …. 4.70–4.71, 4.81–4.82 referral of power …. 4.89–4.92 state court involvement …. 4.72 state family courts …. 4.73–4.76 proceedings in respect of children …. 8.44 property distribution …. 12.29–12.32 de facto relationships, parties to former …. 12.43 de facto financial cause, definition …. 12.43 duration of …. 12.44 existence of, establishing …. 12.44 geographical requirements …. 12.45 threshold conditions …. 12.44 married couples …. 12.30 ‘arising out of the marital relationship’ …. 12.33 death of a party …. 12.35–12.36 intact marriages …. 12.34 matrimonial cause …. 12.31 overseas orders/declarations, in relation to …. 12.38 post-marital cohabitation …. 12.33 pre- or post-divorce …. 12.32 principal relief, proceedings related to …. 12.37 spousal support …. 10.18–10.19 state courts …. 1.45, 4.47 Family Law Act …. 1.44 summary jurisdiction …. 6.5 welfare jurisdiction Family Court of Australia …. 8.116–8.125 Family Court of Western Australia …. 8.116 limits of …. 4.65–4.68 wardship and …. 4.56–4.64 Just and equitable …. 13.34–13.38, 14.65 Hickey v Hickey approach …. 13.14–13.16 property orders, requirement …. 13.1, 13.16, 13.34–13.39, 14.65 Stanford v Stanford see Stanford v Stanford steps in determining …. 13.35–13.36 content of enquiry …. 13.38 nature of enquiry …. 13.37

K Kidnapping see also International child abduction best interests principle and …. 9.66 international child abduction …. 8.149–8.160

L Legal aid conferences …. 2.21 Lesbians see also Homosexuality; Same-sex couples Less adversarial trial evidence …. 8.69 length of trial …. 8.70 overview …. 2.50, 8.69–8.71 principles …. 8.69 procedural fairness …. 8.71 reasons for orders …. 8.71 Lifestyle unconventional, and best interests of child …. 9.63, 9.67–9.68 ‘Living in sin’ …. 1.15 Location orders applicants …. 8.147 best interests of the child …. 8.147 definition …. 8.146 information orders …. 8.147 overview …. 8.146 Lost opportunity alteration of property interests …. 14.13

M Maintenance agreements see also Child support; De facto spouse maintenance; Spouse maintenance approved agreements …. 15.40 Family Law Act (1976–2000), under …. 15.40 financial agreements between husband and wife …. 15.41, 15.47 matrimonial causes power …. 4.27 registered agreements …. 15.40 Marital relationship see Consortium vitae

Marriage see also Bigamy; De facto relationships Aboriginal customary marriages …. 5.9 authorised celebrants, by …. 5.4, 5.53–5.56 age of parties …. 5.34–5.44 breach of promise …. 5.16–5.20 breakdown of see Divorce; Marriage breakdown capacity to marry see Capacity to marry ceremony of marriage see Ceremony of marriage codification …. 5.21–5.24 common law …. 5.4 consent to marry see Consent to marry Constitutional powers …. 4.2–4.20 consular marriages …. 5.57 consummation of …. 5.21 declarations of validity …. 6.3, 6.105, 6.107–6.108 declaration of death …. 6.20 foreign marriages …. 6.106 jurisdiction …. 6.5 transsexuals …. 6.108 definition …. 1.52, 1.61, 4.3 engagement see Engagement essential characteristics …. 5.3–5.4 families based on …. 1.52–1.53 for life …. 5.15 foreign marriages see Foreign marriages foreign nationals, of …. 5.27 formalities and requirements …. 5.53, 6.23–6.26 authorised celebrants …. 6.24 consent to marry …. 6.25–6.26 contravention of provisions …. 6.23–6.24 freedom to marry …. 5.29 gifts in anticipation of …. 5.20 heterosexual requirement …. 5.10 historical background …. 1.1–1.6 changing character …. 1.53 incompatibility …. 6.56, 6.73 indissolubility of marriage …. 1.4, 1.6, 1.22, 1.52 marriageable age …. 5.34

parish responsibility …. 1.5–1.6 Roman Catholic Church …. 1.3–1.4 status of women …. 1.6 incest and …. 5.30–5.33 invalid marriages see Invalid marriages legitimation of children …. 5.84–5.85 man/woman requirement …. 5.10–5.13 Marriage Act …. 5.25–5.26 marriageable age see Marriageable age Matrimonial Causes Act 1959 …. 12.15 monogamy …. 5.5 non-compliance with Marriage Act 1961 (Cth) …. 5.81–5.83 nullity see Nullity of marriage overview …. 5.1–5.2 parentage presumption arising from …. 7.8 polygamous marriage see Polygamous marriage pre-nuptial agreements …. 15.27, 15.41 presumption of validity …. 5.74–5.77 prohibited relationships …. 5.30–5.33, 6.22 property rights historically …. 12.8–12.12 registration of marriages …. 1.4 remarriage …. 6.16, 6.91 same-sex see Same-sex marriages second marriage ceremonies …. 5.78–5.80 solemnisation of …. 5.53–5.56 state laws …. 4.8–4.9 subsisting prior marriage …. 6.15 transsexuals …. 6.43 mistake of identity …. 6.43 transsexuals, of …. 5.12–5.13 validity, declarations …. 12.37 void marriages see Void marriages voluntary union …. 5.14 Marriage breakdown see also Divorce children, disadvantage of …. 14.59 historical background …. 1.4, 1.7–1.24 Industrial Revolution …. 1.6 historical remedies …. 1.7–1.18

annulment …. 1.8–1.10 ‘disappearance’ …. 1.15 discrimination …. 1.16 double standards …. 1.16–1.17 judicial separation …. 1.12, 1.25 ‘living in sin’ …. 1.15 male domination …. 1.6, 1.18 parliamentary divorce …. 1.11–1.14, 1.16 ‘wife sale’ …. 1.6, 1.15, 1.18 psychological impacts …. 1.80–1.83 women, disadvantage of …. 14.59 Marriage celebrants marriage by …. 5.53–5.56 prohibited relationships …. 6.22 unauthorised …. 6.24 Marriage power …. 4.11–4.20 constitutional challenges …. 4.31–4.46 resulting amendments …. 4.40–4.46 stamp duty exemptions …. 4.46 exercise of power …. 4.10 incidental power …. 4.2 maintenance …. 10.18 overview …. 4.11 Marriageable age …. 5.34–5.44 differentiation between sexes …. 5.35 foreign marriages …. 5.40 historical background …. 5.34 lowering of age …. 5.36–5.44, 6.53 effect of orders …. 5.43–5.44 exceptional circumstances …. 5.37–5.41 foreign ethnic communities …. 5.40 pregnancy …. 5.38–5.39 marriage and …. 5.34–5.44 nullity of marriage …. 5.44, 6.52–6.54 overview …. 5.34 under-age persons …. 5.34, 5.36–5.44 consent to marry …. 5.36–5.44 effect of orders …. 5.43–5.44

parental consent …. 5.42, 5.50, 5.81 Married women domicile …. 4.106 historical status …. 1.6 Married Women’s Property Acts (UK) marriage and …. 5.16 property distribution and …. 12.11–12.14, 14.68 tort actions …. 4.69 Maternal custody historical preference for …. 9.10–9.15 Maternity in vitro fertilisation …. 7.16 Matrimonial causes see also Declarations of validity; Divorce; Nullity of marriage ancillary matters …. 1.38, 6.4 ‘arising out of marital relationship’ …. 12.33–12.36 consolidation of laws …. 1.39 Constitutional powers …. 4.9–4.10, 4.21–4.27, 4.29, 4.32, 4.34 definition …. 4.21–4.24, 4.29, 4.35, 4.40, 4.42, 6.105, 12.29–12.32 divorce …. 6.9, 6.62, 6.84, 6.86 divorces granted, 1975 …. 1.41 grounds of divorce …. 1.38 domicile …. 4.107–4.109 institution of proceedings …. 4.107 invalid marriages …. 6.108 joint applications …. 6.7 jurisdiction …. 4.6, 4.10, 6.4 domicile …. 4.108 limits …. 4.71, 4.81–4.82 nexus requirements …. 6.6 maintenance …. 4.27 marriage and …. 5.6–5.7, 5.31 matrimonial property …. 4.25, 4.27 meaning …. 4.21–4.24 nullity of marriage …. 1.42–1.43, 6.9–6.14, 6.19 domicile …. 4.107 overview …. 1.38–1.39, 4.21, 6.3 pre- or post-divorce …. 12.32 principal relief …. 6.4, 12.37

property distribution and …. 12.16, 12.29, 12.31 spousal matters not constituting …. 12.40 spousal support and …. 10.11–10.12, 10.14 Matrimonial causes power alteration of property interests …. 4.27 child of the marriage …. 4.30, 4.35–4.37, 4.41 constitutional challenges …. 4.31–4.46 child of the marriage …. 4.35–4.37, 4.41 resulting amendments …. 4.40–4.46 exercise of power …. 4.10 incidental power …. 4.2 maintenance …. 4.27 matrimonial cause, definition …. 4.21–4.24, 4.29, 4.35, 4.42 amendments …. 4.40–4.46 matrimonial property …. 4.25, 4.27 matrimonial property proceedings …. 4.45 overview …. 4.11, 4.21 scope of matters …. 4.25 Matrimonial property see also Alteration of property interests; Property distribution historical development of …. 12.10–12.15 matrimonial causes power …. 4.25, 4.27, 4.45 property distribution, defined for purposes of …. 12.29–12.32 Maturing minors best interests principle …. 8.34 consent to medical treatment …. 8.32 tests of competency …. 8.30–8.34 parental responsibility …. 8.29 parents’ rights …. 8.29–8.34 Mediation child-inclusive mediation …. 2.17–2.18 facilitative mediation …. 2.14–2.16 property distribution …. 12.27 Men caring for children, hours per day …. 12.7 marriage breakdown, economic consequences …. 12.6 superannuation and …. 15.2 Mental incapacity …. 6.45–6.51 degrees of unsoundness …. 6.47

intoxication …. 6.49 nullity of marriage for …. 6.45–6.51 summary of law …. 6.45 test to determine …. 6.46, 6.50 unsoundness of mind …. 6.48 void marriages …. 6.45–6.51 Ministerial Taskforce on Child Support 2005 …. 11.46–11.47, 11.71 Minors see Marriageable age; Maturing minors Miscarriage of justice setting aside property orders for …. 15.70–15.71 Misconduct alteration of property interests family violence …. 14.37–14.44 financial …. 14.33–14.36 public policy …. 14.44 matrimonial …. 14.38 property division …. 14.37–14.44 Mistake consent to marry …. 6.33, 6.35, 6.39–6.44 mistake as to ceremony …. 6.40, 6.44 mistake of identity …. 6.40–6.41 intersex conditions …. 6.42 nature of identity …. 6.43 post-operative transsexuals …. 6.43 nullity of marriage for as to identity …. 6.41–6.43 as to nature of ceremony …. 6.44 overview …. 6.40 Mother best interests of child and …. 9.10–9.15 Murphy, Hon Justice Lionel …. 1.40, 4.82, 6.57

N Name change of child’s …. 9.126–9.130 National Maintenance Inquiry …. 11.40 New South Wales

assisted conception regulation of practices …. 7.31 de facto relationships …. 1.57 overview …. 5.100, 5.116, 5.118 property distribution on breakdown of financial agreements …. 15.42–15.43 ‘out of time’ applications …. 13.6 termination of …. 6.117–6.118, 6.125 de facto spouse maintenance …. 10.47–10.49 divergence in approach …. 10.50 domestic violence intervention court model …. 3.22 embryo research restrictions …. 7.31 human reproductive technology regulation …. 7.31 Law Reform Commission assisted conception and …. 7.29 de facto relationships and …. 5.89, 5.116 dispute resolution and …. 2.38 family violence and …. 3.2, 3.5, 3.45–3.46, 3.51 property distribution and …. 15.42–15.43 Property (Relationships) Act 1984 …. 12.20 scope …. 12.20 registered relationship …. 6.126 surrogacy in …. 7.42–7.43 Wood Special Commission of Inquiry into Child Protection Services in NSW …. 3.5 New Zealand legitimation of ex-nuptial children …. 7.3 Status of Children Act 1969 (NZ) …. 7.5 Northern Territory de facto relationships spouse maintenance …. 10.49 De Facto Relationships Act 1991 …. 12.20 embryo research restrictions …. 7.31 Supreme Court, jurisdiction …. 6.5 surrogacy …. 7.43 Nullity of marriage …. 6.10–6.54 absence of real consent …. 6.25–6.26 age of party …. 6.52–6.54 arrangements for children …. 6.99

categories of nullity …. 1.8, 1.42–1.43 consent to marry …. 6.25 duress …. 6.27–6.30 fraud …. 6.31–6.44 presumption of consent …. 6.26 decrees …. 1.42, 6.9, 6.105 divorce, proceedings, and …. 6.104 divorce orders …. 6.16 remarriage prior to final …. 6.16, 6.91 domicile …. 4.107 duress …. 6.27–6.30 effect of duress …. 6.28 extension of principle …. 6.29 relaxation of test …. 6.30 social conditions …. 6.34 foreign annulments …. 6.104 fraud …. 6.31–6.39 extension of principles …. 6.32–6.34 intention …. 6.35 mental reservations, and …. 6.37 mistake …. 6.33, 6.35, 6.39–6.40 mistake as to ceremony …. 6.40, 6.44 mistake of identity …. 6.40–6.43 historical background …. 1.8–1.10, 1.42, 6.9 pre-Reformation …. 1.9 prohibited relationships …. 1.9–1.10 institution of proceedings …. 6.7–6.9 invalid marriages …. 6.23–6.24, 6.105–6.106 joint applications …. 6.7 jurisdiction …. 6.4–6.6 marriage formalities …. 6.23 exceptions to invalidation …. 6.24 unauthorised celebrants …. 6.24 marriageable age …. 5.44, 6.52–6.54 underlying rationale …. 6.54 mental incapacity …. 6.45–6.51 degrees of unsoundness …. 6.47 intoxication …. 6.49

summary of law …. 6.45 test to determine …. 6.46, 6.50 unsoundness of mind …. 6.48 mistake as to identity …. 6.41–6.43 as to nature of ceremony …. 6.40, 6.44 identity, of …. 6.40–6.41 intersex conditions …. 6.42 nature of identity …. 6.43 post-operative transsexuals …. 6.43 overview …. 6.40 overseas decrees and property …. 12.38 overview …. 1.8, 1.42, 6.1–6.3, 6.9–6.14 prohibited relationships …. 1.9–1.10, 1.43, 6.14, 6.21–6.22 adoption …. 5.32 rules of affinity …. 1.9–1.10, 1.43 social considerations …. 6.34 statutory provisions …. 6.13–6.14 subsisting prior marriage …. 6.15–6.20 bigamy …. 6.18 declaration of death …. 6.20 failure to divorce …. 6.17–6.18 presumption of death …. 6.19 remarriage before final divorce order …. 6.16, 6.91 void marriages …. 1.9–1.10, 1.42, 6.3, 6.9, 6.105–6.106 ancillary proceedings …. 6.109–6.110 consent to marry …. 6.25–6.54 decrees …. 1.42, 6.9, 6.105 duress …. 6.27–6.30 effect of declaration …. 6.9 fraud …. 6.31–6.44 grounds for declaration …. 1.9, 1.43, 6.14 marriage formalities …. 6.23–6.24 marriageable age …. 5.44, 6.52–6.54 mental incapacity …. 6.45–6.51 parties able to challenge …. 6.12 prohibited relationships …. 1.9–1.10, 1.43, 6.14, 6.21–6.22 remarriage before final divorce order …. 6.16

statutory provisions …. 6.14 subsisting prior marriage …. 6.15–6.20 voidable marriages …. 1.42, 6.9 availability of remedy …. 1.42, 6.10 divorce, and …. 6.10 duress …. 6.27 Nuptial agreements property distribution and …. 15.27–15.28

O Orders see Child-related proceedings; Enforcement of orders; Parenting orders; Spouse maintenance Overseas marriages see Foreign marriages

P Paramountcy principle see Best interests of the child Parens patriae see Wardship jurisdiction Parentage see also Assisted conception; Paternity …. 7.1–7.35 assisted conception …. 7.16–7.20 access to …. 7.33–7.36 assisted insemination …. 7.15 cloning …. 7.27 de facto relationships …. 7.17, 7.33 frozen embryos …. 7.28–7.29 gamete intra-fallopian transfer …. 7.15 in vitro fertilisation …. 7.15–7.16 legal problems …. 7.15–7.16 legislation …. 7.17–7.20, 7.31–7.32 regulation of …. 7.27 techniques …. 7.15–7.16 biological parents …. 7.26 establishing parenthood …. 7.6 evidence …. 7.10–7.14 overview …. 7.1 parentage testing orders …. 7.8, 7.10 consent of parent or guardian …. 7.14 contravention …. 7.13

deceased parents …. 7.14 requirements …. 7.11–7.12 presumptions of parentage …. 7.7–7.14 Child Support Assessment Act …. 7.9 circumstances not arising …. 7.7 cohabitation …. 7.8 Family Law Act …. 7.7–7.8 frozen embryos …. 7.28 marriage …. 7.8 registration of birth …. 7.8 role of presumptions …. 7.7 states and territories …. 7.6 status of children filius nullius …. 7.3 historical background …. 7.3–7.4 illegitimate children …. 7.3 legislation …. 7.5 surrogacy …. 7.38–7.49 Family Law Act …. 7.45–7.49 legislation …. 7.41–7.44 overview …. 7.37–7.38 status of surrogacy arrangements …. 7.39–7.40 testing orders see Parentage testing orders Parentage testing orders …. 7.8, 7.10 applicants …. 7.10 children, with respect to …. 7.14 consent of parent or guardian …. 7.14 contravention of by an adult …. 7.13 inferences from …. 7.13 DNA testing, deceased parents …. 7.14 ‘in issue in proceedings’ …. 7.11 procedures under …. 7.10 requirements before court will make …. 7.11–7.12 Parental responsibility …. 8.19–8.39 adoption …. 8.28 content of …. 8.20–8.23 definition …. 8.19 equal shared

best interests principle and …. 8.62 presumption of …. 9.5–9.7 exceptions …. 9.6 joint versus several responsibility …. 8.25–8.27 maturing minors …. 8.28–8.34 ‘no-order principle’ …. 8.37 persons having …. 8.24 reallocation of see Child custody scope of …. 8.28–8.34 maturing minors …. 8.28–8.34 Parenthood see Parentage Parenting agreements see Parenting plans Parenting disputes see Best interests of the child; Child-related proceedings; Parental responsibility Parenting orders …. 8.45–8.54 best interests of child …. 8.55–8.60 application …. 8.58–8.59 considering making an order …. 8.56–8.57 criticism …. 8.60 interim orders …. 8.62 categories …. 8.45 contact orders …. 8.51–8.52 non-parents …. 8.51 residence-contact orders …. 8.52 family violence orders, interrelationship with …. 8.109–8.115 interim orders …. 3.24, 8.98–8.101 presumption of shared responsibility …. 8.62, 8.100 overview …. 8.45–8.46 parental responsibility see Child custody; Parental responsibility proceedings …. 8.53 institution of proceedings …. 8.53 supervision of compliance …. 8.54 proceedings in respect of …. 8.53–8.54 residence orders …. 8.47–8.50 custody orders, comparison …. 8.49 non-parents …. 8.48 non-relatives …. 8.48 overview …. 8.47–8.48

Parenting plans contravention …. 8.129 overview …. 8.8 parenting orders, and …. 8.28, 8.35, 8.104 reforms …. 8.40–8.41 Parents’ rights maturing minors …. 8.29–8.34 consent to medical treatment …. 8.32 Parliamentary divorce discrimination against the poor …. 1.16 male-centred procedure …. 1.14 overview …. 1.11 procedure …. 1.13 Paternity see also Parentage Child Support Assessment Act …. 7.9 divorce orders …. 6.102 issue estoppel …. 6.102 presumption of paternity …. 7.4 Policy issues property distribution matters …. 12.23–12.29 discretion of the courts …. 12.23–12.25 legislative reform, lack of …. 12.25–12.26 settlement, promotion of …. 12.27 violence, considerations of …. 12.27, 14.44 Polygamous marriage Aboriginal customary marriages …. 5.5 ancillary proceedings …. 6.110 legal recognition …. 5.6 Family Law Act …. 5.8 multiculturalism, and …. 5.7 nullity of marriage and …. 6.16–6.20 succession …. 5.6, 5.8 Poverty feminisation of …. 10.4, 10.24, 12.5–12.7, 14.59 Pre-action procedures overview …. 2.25–2.26 parenting disputes …. 2.27–2.32 property disputes …. 2.33–2.34

Pregnancy marriageable age, and …. 5.38–5.39 Pre-nuptial agreements …. 15.27, 15.41 Prerogative writs …. 4.129 Primary dispute resolution see Dispute resolution Prohibited relationships adoption …. 5.32 consanguinity …. 6.14 disclosure to celebrant …. 6.22 foreign marriages …. 5.33 historical background …. 1.9–1.10, 1.43, 5.31 overview …. 5.30, 6.21 relationships of affinity …. 1.9–1.10, 1.43, 5.32, 6.14 statutory provisions …. 6.14, 6.21–6.22 uncles and nieces …. 5.33 Property definition …. 13.20 examples …. 13.21 full and frank disclosure requirement …. 13.33 identification see Identification of interests in property liabilities …. 13.31–13.32 superannuation …. 15.10 unity of property principle …. 12.8, 12.10 valuing …. 13.30 Property and Family Law-Options for Change community property system …. 12.3, 12.24 court discretion, criticisms …. 12.24 Property distribution see also Alteration of property interests applications for orders …. 10.18 time limits …. 13.3 extension, leave …. 13.4–13.5 child support and …. 12.42 commencement of proceedings for …. 13.2 common law …. 12.10 ‘community of property’ regime …. 12.2–12.3 consent orders …. 15.37–15.39 vary, consent to …. 15.75 cross-vesting of jurisdiction and …. 12.40–12.41

de facto relationships, on breakdown of …. 12.19–12.22 alteration of property interests …. 13.9 declarations of property interests …. 13.9–13.11 Family Law Act, under …. 12.21–12.22 finality principle …. 13.7 financial agreements …. 10.57, 15.42–15.43 general law …. 12.21, 15.2 legislation …. 12.20, 13.1 overview …. 15.1 statutory provisions …. 13.12–13.14 ‘out of time’ applications …. 13.6 time limits for applications …. 13.2, 13.6 extensions, leave for …. 13.6 dispute resolution …. 12.27 family violence …. 12.27 fault considerations …. 12.27 finality principle …. 13.7–13.8 financial agreements under FLA …. 15.41–15.60 forms of order …. 14.66 forum conveniens …. 12.39 historical background …. 12.2–12.16 judicial discretion …. 12.23–12.24 jurisdiction …. 12.29–12.42 maintenance agreements under FLA …. 15.40 matrimonial cause defined …. 12.29–12.32 mediation …. 12.27 overseas decrees …. 12.38 recognition grounds …. 12.38 overview …. 10.1, 12.1, 14.1 ‘palm tree justice’ …. 12.14–12.15, 13.33 preliminary issues …. 12.1–12.28 property distribution …. 15.13–15.26 after Pt VIIIAA …. 15.18–15.22 disposition of property, restraining …. 15.15 overview …. 15.13–15.14 practical implications of PT VIIIAA …. 15.23–15.26 prior to Pt VIIIAA …. 15.16–15.17 third parties, against …. 15.16–15.19, 15.22–15.26

public policy overview …. 12.23–12.28 recognised legal principles …. 13.34 reform issues …. 12.23–12.28 ‘separate property’ regime …. 12.24 setting aside see Setting aside spousal agreements see Financial agreements spouse maintenance, and …. 10.3, 10.29, 14.67 Stanford v Stanford see Stanford v Stanford steps of court in determining …. 13.39 superannuation and …. 15.2–15.12 flagging orders …. 15.9 overview …. 15.2–15.3 post-2002 amendments …. 15.6–15.7 pre-2002 amendments …. 15.4 ‘property’, whether constitutes …. 15.10 splitting orders …. 15.8 superannuation agreements …. 15.12 two pools approach …. 15.10–15.11 taxation effect …. 15.20–15.21 time limits …. 13.3 extension, leave …. 13.4–13.5 hardship …. 13.4–13.5 trust law and …. 12.9 trusts and companies …. 13.23–13.25, 15.27–15.28 ‘unity of property’ and …. 12.8, 12.10 varying orders made with consent …. 15.76 Property distribution (de facto relationships) …. 12.19–12.22 see also Alteration of property interests; Property distribution alteration of property interests …. 13.9 declaration of property interests …. 13.9–13.11 Family Law Act, under …. 12.21–12.22 finality principle …. 13.7 financial agreements …. 10.57, 15.42–15.43 general law …. 12.21, 15.2 legislation …. 12.20, 13.1 overview …. 15.1 statutory provisions …. 13.12–13.14

‘out of time’ applications …. 13.6 time limits for applications …. 13.2, 13.6 extensions, leave for …. 13.6 Protection orders family violence …. 3.18, 3.21–3.22 overview …. 3.18, 3.21–3.22 parenting orders, interrelationship with …. 8.109–8.115 state and territory legislation, under Commonwealth law, relationship with …. 8.110 Psychological impacts of marriage breakdown …. 1.81–1.83 Public policy property distribution family violence …. 12.27, 14.44 overview …. 12.23–12.27 spousal support, current policy issues …. 10.15–10.17

Q Queensland child abuse Carmody Inquiry …. 3.5 civil partnerships in …. 5.119 de facto relationships in overview …. 5.94, 5.100 Property Law Act 1974 …. 12.20 termination of …. 6.117–6.118 embryo research restrictions …. 7.31 family violence taskforce …. 3.4 surrogacy in …. 7.42–7.43

R Reconciliation …. 2.1, 2.55 concept …. 6.68 resumption of cohabitation …. 6.87 two-year marriages …. 6.88–6.89 Recovery orders …. 8.148 Rectification financial agreements, of …. 15.49 Registration

child support …. 11.48–11.60 departure prohibition orders …. 11.56 distribution of payments …. 11.59 employer withholding …. 11.57–11.58 enforcement …. 11.51–11.59 objectives of …. 11.49–11.50 overview …. 11.48 payment …. 11.51–11.59 recovery of debts …. 11.54 registration of liabilities …. 11.51, 11.53 social security, associated changes to …. 11.60 social welfare recipients …. 11.52 de facto relationships overview …. 1.58, 5.116–5.117 termination of …. 6.125 Religion best interests principle and …. 9.71–9.77 blood transfusions …. 9.71, 9.75 Relocation …. 9.116–9.125 current Family Court position …. 9.121 interim orders …. 8.101 Remarriage …. 6.16, 6.91 Removal of child from Australia see also International child abduction …. 8.143–8.145 Reports child abuse, mandatory reporting Family Law Act, under …. 3.38–3.42 state or territory laws …. 3.36–3.37 family reports …. 8.90–8.93 Representation of children see Independent children’s lawyers Reproductive technologies see Assisted conception Rescission divorce orders …. 6.103 Residence domicile, distinction …. 4.105 Residence orders …. 8.47–8.50 custody orders, comparison …. 8.49 non-parents …. 8.48

non-relatives …. 8.48 overview …. 8.47–8.48 Restraining orders see Protection orders Resulting trusts …. 12.14 Risk, unacceptable family violence, protection from …. 9.31–9.32 sexual abuse allegations …. 9.106–9.109

S Same-sex couples see also Homosexuality; Lesbians assisted conception and parentage …. 7.20–7.22 birth certificate …. 7.22 assisted conception children access to procedures …. 7.17 civil partnerships …. 1.62 de facto relationships …. 5.90 families …. 1.60–1.63 surrogacy …. 7.44 overseas commercial arrangements …. 7.48 Same-sex marriages recognition …. 1.60 Australian Capital Territory …. 1.62 Australian position …. 1.60 Canada …. 1.60 constitutional issues …. 1.61 foreign marriages …. 5.73 Tasmanian legislation …. 1.62 Separation consortium vitae …. 6.60–6.61, 6.64–6.65 elements …. 6.61 irretrievable breakdown …. 6.79 living under same roof …. 6.64, 6.73–6.83 declaration …. 15.48 desertion …. 6.62–6.63, 6.74, 6.79 duration of …. 6.72, 6.86–6.87 establishing …. 6.61 foreign marriages …. 6.104

intention …. 6.65–6.66, 6.68–6.71 communication of intention …. 6.70–6.71 proof of intention …. 6.70 judicial separation …. 1.12, 1.25 living separate and apart …. 6.68 living under same roof …. 6.73, 6.79–6.80, 6.83 children, remaining for …. 6.82 High Court recognition …. 6.77 sharing of common life …. 6.78 standard of proof …. 6.80–6.81 two households test …. 6.74–6.75, 6.78 overview …. 6.60–6.72 period of separation …. 1.34, 1.40, 6.72, 6.86 continuity requirement …. 6.86 establishing …. 6.72 ‘kiss and make up’ clause …. 6.86–6.87 reasonable likelihood of cohabitation being resumed …. 6.67–6.68, 6.84–6.85 resumption of cohabitation …. 6.68–6.69 period of separation, and …. 6.86–6.87 reasonable likelihood …. 6.84–6.85 reconciliation …. 6.87 two-year marriage requirement …. 6.88–6.89 under same roof …. 6.73–6.83 Separation declaration …. 15.48 Setting aside decree absolute …. 6.93–6.95 financial agreements …. 15.49 grounds …. 15.50 property orders …. 15.68–15.74 change in child circumstances …. 15.74 child circumstances, change in …. 15.74 default …. 15.73 impracticability …. 15.72 miscarriage of justice …. 15.70–15.71 overview …. 15.68–15.69 transactions …. 15.29–15.31 transactions, of …. 15.29–15.34 bona fide purchasers …. 15.33

conditions precedent …. 15.31 sham transactions …. 15.33 Settlement encouragement of …. 15.35 Sex reassignment of children …. 8.124 Sexual abuse allegations …. 9.99–9.115 best interests principle and …. 9.100 difficulties involving …. 9.101–9.102, 9.112 evidence …. 9.113 false allegations …. 9.102 family violence and …. 3.31 medical examinations …. 9.114–9.115 standard of proof …. 9.103–9.105, 9.110–9.111 state intervention for protection of child …. 3.43–3.44 unacceptable risk test …. 9.106–9.109 Shared parental responsibility see also Child custody; Parental responsibility as to s 65DAA …. 9.9, 9.21–9.23 attachment theory …. 9.16–9.17 impact of, analysis …. 12.28 maternal custody, historical preference for …. 9.10–9.15 overview …. 9.10 relocation cases …. 9.125 research on benefits of …. 9.18–9.19 social science research, use as aid in exercise of discretion …. 9.20 Siblings best interests of child, relevance of separation to determination …. 9.50–9.54 Social parents …. 7.16 Social security child support and associated changes to …. 11.60 de facto relationships …. 1.56, 10.58 spouse maintenance, and …. 10.34–10.35 Society family, and …. 1.1 South Australia assisted conception regulation of practices …. 7.31 de facto relationships …. 1.56

Domestic Partners Property Act 1996 …. 12.20 overview …. 5.118 property distribution on breakdown of financial agreements …. 15.42–15.43 embryo research restrictions …. 7.31 surrogacy in …. 7.43 Special contributions …. 14.14, 14.24–14.32 Specific issues orders overview …. 8.8 subject matter …. 8.12, 9.128 ‘Spend time with’ orders see also Access orders; Contact orders children not wanting to spend time with parents …. 9.95–9.96 intractable nature of …. 9.97–9.98 orders for children to spend time with non-parents …. 9.92–9.94 orders not permitting children to spend time with parents …. 9.86–9.91 Sperm donors child support, liability for …. 7.25–7.26 parentage status of …. 7.20–7.23 posthumous use of …. 7.30 consent …. 7.30 Splitting orders …. 15.8 Spousal agreements see Financial agreements Spouse power imbalance between …. 15.36 putative spouse …. 1.56 Spouse maintenance …. 10.3–10.45 ability to pay …. 10.21 alimony …. 10.7 alteration of property interests and …. 14.67 alternative conceptual models …. 10.41 applications …. 10.18 bankruptcy …. 10.21, 10.25, 10.32 Child Support Scheme, and …. 10.3, 10.30, 10.43 ‘clean break’ principle …. 10.3, 10.18 cohabitation and …. 10.31 commencement of proceedings for …. 13.2 common law …. 10.6 court’s discretion …. 10.25, 10.40

CPI adjustments …. 10.37 current policy issues …. 10.15–10.17 de facto relationships see De facto spouse maintenance duration of orders …. 10.38 enforcement of orders …. 10.39 entitlement …. 10.5, 10.17, 10.20 factors for consideration …. 10.25–10.33 threshold finding …. 10.21–10.24 entitlement to …. 10.20–10.33 inability to adequately support self …. 10.21–10.24 overview …. 10.20 powers of court …. 10.25 s 72 threshold …. 10.21–10.24 s 75(2) factors …. 10.25–10.33 conduct, consideration of …. 10.33 needs and means of parties …. 10.26–10.29 third parties, financial relationships with …. 10.30–10.32 factors for consideration …. 10.20, 10.25 conduct of parties …. 10.33 court’s discretion …. 10.25 financial obligations to third parties …. 10.30–10.32 list of factors …. 10.25 parties’ needs and means …. 10.26–10.29 social security, and …. 10.34 fault-based divorce …. 10.12–10.13, 10.15–10.16 Matrimonial Causes Act …. 10.14 minimal loss principle …. 10.13–10.14 feminisation of poverty …. 10.4, 10.24, 12.2–12.7, 14.59 financial agreements in …. 10.25 financial independence …. 10.17 financial obligations to third parties …. 10.30 bankruptcy …. 10.32 cohabitation …. 10.31 principle of priorities …. 10.30, 10.32 form of orders …. 10.36 future of …. 10.40–10.45 future trends …. 10.4, 10.40, 10.42 Australian position …. 10.44–10.45

gender inequalities …. 10.42–10.43, 10.45 reforms …. 10.43 hardship …. 10.18 historical background …. 10.5–10.14 adultery …. 10.14 colonial legislation …. 10.10 decree of restitution …. 10.7 ecclesiastical courts …. 10.7–10.8, 10.12 fault-based divorce …. 10.12–10.14, 10.16 legal right to support …. 10.6 minimal loss principle …. 10.13–10.14 ‘poor law’ …. 10.8–10.9 uniform legislation …. 10.11 irretrievable breakdown, and …. 10.15–10.16 jurisdiction …. 10.18–10.19 limited duration orders …. 10.19 lump sum payments …. 11.88 variation of orders …. 10.37 maintenance orders …. 10.36–10.39 duration of …. 10.38 enforcement of …. 10.39 form of …. 10.36 modification of …. 10.37 minimal loss principle …. 10.13–10.14, 10.23 no-fault divorce and …. 10.16–10.17 overview …. 10.1–10.4, 10.40 parties’ needs and means …. 10.26 age and health of parties …. 10.27 children, and …. 10.26 contribution to professional qualifications …. 10.26 duration of marriage …. 10.26 employment training …. 10.27 property distribution, and …. 10.29 resources of parties …. 10.28 standard of living …. 10.26 periodic payments …. 10.36 policy issues …. 10.5, 10.15–10.17 financial independence …. 10.17

property distribution, and …. 10.3, 10.29, 14.67 property transfer or settlement …. 10.36 public resources, and …. 10.34 rehabilitative maintenance …. 10.27, 10.41 social security, and …. 10.34–10.35 social security, relationship with …. 10.34–10.35 standard of living …. 10.23, 10.26 temporary orders …. 10.19 threshold finding …. 10.21 ‘adequately,’ meaning …. 10.23 ‘adequately’ able to support oneself …. 10.22–10.24 employment difficulties …. 10.24 feminisation of poverty, and …. 10.24 obligation to maintain …. 10.21–10.22 standard of living …. 10.23 types of orders …. 10.18–10.19 urgent orders …. 10.19 variation of orders …. 10.37 Standard of proof separation under same roof …. 6.80–6.81 Stanford v Stanford adding back assets, notional …. 13.29, 14.34 appeal grounds …. 13.16 death of a party, impact …. 12.35–12.36 decision, impact of …. 12.28 division of property prior to …. 13.14–13.15 facts …. 12.34 fundamental principles applicable in property division …. 13.16 identification of interests see Identification of interests in property jurisdiction of the family court as to intact marriages …. 12.34 just and equitable requirement …. 13.16 legal and equitable interests, identification of …. 12.31, 13.19–13.33 steps of court in property applications …. 13.39 State and territory courts see also Family Court of Western Australia appeals …. 4.128 family courts …. 1.48 Family Law Act …. 1.44 federal jurisdiction …. 1.45, 4.47

summary jurisdiction …. 6.5 Supreme Courts …. 1.44 States and territories adoption …. 4.48–4.51, 4.90 assisted conception parentage provisions …. 7.20 donors, status of …. 7.20–7.21 inconsistency with Family Law Act, where …. 7.23 regulation of procedures …. 7.31 child abuse mandatory reporting …. 3.36–3.37 powers …. 3.7 protection against …. 3.33–3.35 Commonwealth power, and adoption …. 4.48–4.51, 4.90 referral of powers …. 7.6 Constitution, and …. 4.47 de facto relationships …. 1.55–1.57 Australian Capital Territory …. 1.62 current legislation …. 12.20 New South Wales …. 1.57 referral of powers …. 1.55 South Australia …. 1.56 Tasmania …. 1.55 de facto relationships, financial agreements …. 15.42–15.43 de facto spouse maintenance …. 10.48–10.49 divergence in approach …. 10.50 divorce laws …. 1.36, 1.38 family law …. 4.8–4.9 family violence, relationship between Commonwealth and state or territory laws overview …. 3.7, 3.23–3.26 protection of children …. 3.45–3.53 marriage laws …. 4.8–4.9 presumptions of parentage …. 7.6 spouse maintenance …. 10.11 state family courts …. 4.73–4.76 surrogacy …. 7.42–7.44 Status of children see Children

Status of women historical background …. 1.6, 1.18, 1.24 Status quo best interests principle, and …. 9.46–9.49 Step-children child of the marriage …. 11.32–11.38 Step-parents child maintenance …. 11.32–11.38 Sterilisation of intellectually disabled best interests of the child …. 8.118–8.120 relevant considerations …. 8.123 Family Court powers and state legislation …. 8.121 Family Law Council report …. 8.122 Marion’s case …. 4.58–4.64, 4.67, 8.31–8.32, 8.118–8.120 special medical procedures …. 8.124 welfare jurisdiction …. 8.125 Succession frozen embryos …. 7.29 polygamous marriage …. 5.6–5.8 Summary jurisdiction appeals …. 4.120 divorce …. 6.4–6.5 overview …. 4.32, 4.72, 4.115 Superannuation alteration of property interests …. 12.22, 14.11 ‘clean break’ principle …. 10.3, 10.18 condition of release …. 15.5 de facto relationships …. 1.56 property distribution and …. 15.2–15.12 flagging orders …. 15.9 overview …. 15.2–15.3 post-2002 amendments …. 15.6–15.7 pre-2002 amendments …. 15.4 ‘property’, whether constitutes …. 15.10 splitting orders …. 15.8 superannuation agreements …. 15.12 two pools approach …. 15.10–15.11 types of …. 15.5

women and …. 15.2 Supreme Courts …. 1.44 Surrogacy …. 7.37–7.58 adoption …. 7.39 altruistic …. 7.40 assisted conception and …. 7.39 biological father, status …. 7.52–7.54 citizenship …. 7.51 commissioning parents and parentage …. 7.57 commercial arrangements …. 7.38, 7.40 prohibitions …. 7.42 overseas …. 7.42 common law status …. 7.39 costs reimbursement …. 7.44 enforcement of agreements …. 7.43–7.46, 7.51 ethics …. 7.38 under FLA …. 7.50–7.51 Family Court decisions …. 7.50–7.55 genetic …. 7.37 law reform proposals …. 7.55, 7.58 legal parentage and …. 7.43–7.45, 7.53–7.57 legislation …. 7.41–7.43 Family Law Act …. 7.45–7.49 legislative developments …. 7.41–7.44 nature of arrangements …. 7.37 partial or genetic …. 7.37 total or gestational …. 7.37 overseas declaration of parentage …. 7.53 number of Australians engaging in …. 7.48 parenting orders as to …. 7.49, 7.53 prohibition …. 7.42 overview …. 7.37–7.38 parentage issues …. 7.16 parentage presumptions …. 7.39 parental orders …. 7.49 overseas commercial arrangements …. 7.53 parenting orders …. 7.49

partial surrogacy …. 7.37 states and territories legislation …. 7.42 status of surrogacy arrangements …. 7.39–7.49 transfer of parentage orders …. 7.44 same-sex couples …. 7.44

T Tasmania de facto relationships …. 1.55 overview …. 5.116, 5.118 registration …. 6.125 Relationships Act 2003 …. 12.20 termination of …. 6.125 de facto spouse maintenance …. 10.48–10.49 embryo research restrictions …. 7.31 registered relationship …. 6.126 same-sex marriages …. 1.62 surrogacy in …. 7.43 Taxation child support and administrative assessment …. 11.81 calculation of support …. 11.72–11.73 enforcement of support …. 11.55 de facto relationships …. 1.56 property distribution, taxation effect of …. 15.20–15.21 Territories see States and territories Third parties best interests principle, and …. 9.55–9.62 cross-vesting scheme …. 12.41 declarations of property interests …. 13.11 financial relationships with, entitlement to spousal support …. 10.30–10.32 injunctions against …. 15.16–15.19, 15.22–15.26 limits of federal jurisdiction …. 4.52–4.55 spouse maintenance …. 10.30–10.32 Time continuity requirement …. 6.86 establishing …. 6.72

‘kiss and make up’ clause …. 6.86–6.87 period of separation …. 1.34, 1.40, 6.72, 6.86 two-year marriages …. 6.88–6.89 Tort …. 4.69 Transsexuals declarations of validity …. 6.108 marriage of …. 5.12–5.13 post-operative transsexuals …. 6.43 mistake of identity …. 6.43 Trusts matrimonial property and …. 15.27–15.28, 13.23–13.25 property distribution, trust law and …. 12.9, 15.27–15.28

U Unacceptable risk family violence, protection from …. 9.31–9.32 sexual abuse allegations …. 9.106–9.109 United Kingdom legitimation of ex-nuptial children …. 7.3 marriage, historical background of …. 1.2–1.6 United Nations Convention on the Rights of the Child best interests principle and …. 8.55, 9.45, 9.76, 9.78–9.79, 9.81 child abuse provisions …. 3.28 child-inclusive mediation …. 2.17 child-related proceedings independent children’s lawyers …. 8.72, 8.75 overview …. 8.4 parental responsibility …. 8.22 compliance with obligations …. 3.6 dispute resolution and …. 2.17 family violence and …. 3.6, 3.44 immigration detention …. 4.66, 8.4 limits of federal jurisdiction and …. 4.66 overview …. 8.2–8.4 ratification of …. 8.2 sexual abuse allegations …. 9.110 ‘spend time with’ orders and …. 9.89, 9.96

Unity of property …. 12.8 Unmarried couples see also De facto relationships property distribution historical background …. 12.17–12.22 Unsoundness of mind see Mental incapacity

V Validity of marriage see also Declarations of validity; Invalid marriages presumptions …. 5.74–5.77 Valuing property date …. 13.30 disagreement as to …. 13.30 Variation of orders …. 8.103–8.108 best interests of the child …. 8.105 change of circumstances …. 15.74 child-related proceedings …. 8.103–8.108 consent to vary …. 15.75 de facto spouse maintenance, and …. 10.59 spouse maintenance …. 10.37 de facto …. 10.59 varying orders made by consent …. 15.76 Victoria assisted conception regulation of practices …. 7.31 de facto relationships …. 1.62 overview …. 5.116, 5.118 property distribution …. 15.42–15.43 registration …. 6.125 termination of …. 6.125 de facto spouse maintenance …. 10.48–10.49 embryo research restrictions …. 7.31 family violence Royal Commission …. 3.4 human reproductive technology regulation …. 7.31 Law Reform Commission assisted conception and …. 7.30 family violence and …. 3.5 Marriage Act 1958 (Vic)

presumption of equality of ownership of former matrimonial home …. 12.15 registered relationship …. 6.126 Relationships Act 2008 …. 12.20 Status of Children Act 1974 (Vic) …. 7.5 surrogacy in …. 7.42–7.43 Violence see Family violence Void marriages …. 5.26 ancillary proceedings …. 6.109–6.112 declarations of validity …. 6.112 jurisdiction …. 6.109, 6.112 polygamous marriage …. 6.111 consent to marry …. 6.25 duress …. 6.27–6.30 fraud …. 6.31–6.39 presumption of consent …. 6.26 convenience, marriage of …. 5.26 declarations of validity …. 6.107–6.108 decree of nullity …. 1.42, 6.9, 6.105 divorce and …. 6.105–6.106 divorce orders …. 6.16 remarriage prior to final …. 6.16, 6.91 duress …. 6.27 effect of duress …. 6.28 extension of principle …. 6.29 relaxation of test …. 6.30 social considerations …. 6.34 fraud …. 6.31, 6.35–6.36, 6.38 extension of principles …. 6.32–6.34 intention …. 6.35 mental reservations, and …. 6.37 mistake …. 6.33, 6.35, 6.39–6.40 mistake as to ceremony …. 6.40, 6.44 mistake of identity …. 6.40–6.43 social considerations …. 6.34 grounds for declaration …. 1.9, 1.43, 6.14 historical background …. 1.9–1.10 Marriage Act 1961 (Cth), under …. 6.23–6.24 marriage formalities …. 6.23

exceptions to invalidation …. 6.24 unauthorised celebrants …. 6.24 marriageable age …. 5.44, 6.52–6.53 underlying rationale …. 6.54 mental incapacity …. 6.45–6.51 degrees of unsoundness …. 6.47 intoxication …. 6.49 summary of law …. 6.45 test to determine …. 6.46, 6.50 unsoundness of mind …. 6.48 mistake as to ceremony …. 6.40, 6.44 mistake of identity …. 6.40–6.41 intersex conditions …. 6.42 nature of identity …. 6.43 post-operative transsexuals …. 6.43 nullity of marriage …. 6.105–6.106 overview …. 1.42, 6.3, 6.9 parties able to challenge …. 6.12 prohibited relationships …. 1.9–1.10, 1.43, 6.14, 6.21 adoption …. 5.32 rules of affinity …. 1.9–1.10, 1.43 statutory provisions …. 6.12–6.14 subsisting prior marriage …. 6.15 bigamy …. 6.18 declaration of death …. 6.20 failure to divorce …. 6.17–6.18 presumption of death …. 6.19 remarriage before final divorce order …. 6.16, 6.91 Voidable marriages availability of remedy …. 1.42, 6.10 divorce, and …. 6.10 duress …. 6.27 overview …. 1.42, 6.9

W Wardship jurisdiction …. 4.56–4.64 child of the marriage …. 4.57

Commonwealth’s powers …. 4.57 marriage power …. 4.56 states and territories …. 4.56 Family Court of Australia …. 4.57–4.64, 8.116–8.125 Family Court of Western Australia …. 8.116 historical background …. 4.56 limits of …. 4.65–4.68 limits of federal jurisdiction …. 4.56–4.64 Marion’s case …. 4.58–4.64 state Supreme Courts …. 4.56 Welfare of children see also Best interests of the child; Family counselling immigration detention …. 4.66, 8.4, 8.33, 8.125 interim orders …. 8.98–8.102 sex reassignment …. 8.124 sterilisation of intellectually disabled see Sterilisation of intellectually disabled Welfare of the family contributions to …. 14.13–14.15, 14.21–14.23 Western Australia see also Family Court of Western Australia assisted conception in regulation of practices …. 7.31 Columbus Pilot …. 3.54 de facto relationships overview …. 5.94 property distribution on breakdown of, financial agreements …. 15.42–15.43 spouse maintenance …. 10.47–10.49 termination of …. 6.113 embryo research restrictions …. 7.31 Family Court Act 1997 …. 12.20 Federal Circuit Court …. 4.115 Law Reform Commission …. 5.9 referral of powers, non-participation …. 7.6 surrogacy in …. 7.43 ‘Wife sale’ …. 1.6, 1.15, 1.18 Windfalls …. 14.54 Women see also Assisted conception; Lesbians child care …. 12.7 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) …. 3.6 ‘double shift’ issue …. 12.28

economic situation after divorce …. 12.5–12.6 feminisation of poverty …. 12.5–12.7, 14.59 historical position …. 1.6, 1.18, 1.24 single and lesbian, access to assisted conception …. 7.33 superannuation and …. 15.2 withdrawal from workforce …. 12.7 Workplace Gender Equality Agency gender pay gap …. 12.7