Can material prepared for family law proceedings be used by the Police?

In the recent case of Sahadi and Savva the mother and father were involved in family law proceedings against each other and they were also both accused of serious criminal charges.

The trial judge had granted an application by the Commissioner of Police to release a report prepared in family law proceedings to the Police and others.  The mother appealed that decision. 

On appeal the Full Court noted:

• ·         That the trial judge had found that the Police had a legitimate forensic purpose in seeking leave to use the report and His Honour had weighted the child's interests against the public interest in ensuring that justice is done in the criminal proceedings;
• ·         That the very purpose of a report is for the benefit of the Court and the expert is obligated to declare that no matters of significance have been withheld from the Court – therefore it is impossible to see how there is some confidentiality between the report writer and the parties;
• ·         That the question of the admissibility of the report – including consideration of disputed matters of fact – is a matter for the Court determining the criminal proceedings.
• ·         That the trial Judge had accepted the evidence of the Commissioner – unchallenged by the mother – that it is only after the collection and evaluation of evidence that decisions can be made as to the use of material and as such the whole of the report was relevant.

The Full Court therefore upheld the trial judge's decision.

Should an inference be made against a party that fails to call a witness?

In the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the trial Judge had failed to draw an inference against the wife when she had not called her father and mother as witnesses in relation to money that they all said her parents had loaned to her and which the husband thought had been a gift.

The so called "rule in Jones and Dunkel" allows a Court to draw an inference unfavourable to the party that failed to call the witness, such that the evidence of the uncalled witness would not have assisted the party's case.

In Masoud and Masoud the Full Court, accepting the rule, noted however that "it is important to observe that the operation of the "rule" is not a substitute for evidence".

In this case the wife had given evidence, in both an affidavit and in person before the Court, as to the existence of a loan, as did her father in an affidavit. That evidence was supported by a loan agreement that had been produced to the Court. No evidence was either led by the husband or elicited in cross-examination of the wife to cast doubt on the evidence of the wife and her father.

In the particular circumstances of the case the Court found that the trial Judge had not fallen into error in not making an inference against the wife. 

Failing to disclose a document in property division proceedings

Among the many grounds of appeal the husband argued in the recent case of Masoud and Masoud the Full Court of the Family Court was required to consider whether the husband failed to disclose certain financial documents, namely in relation to a family trust that he was a discretionary beneficiary of.

The husband mentioned in his evidence that he was a discretionary beneficiary of the trust, but did not produce any documents. Under cross examination he said he had asked family members for the documents but they refused to provide them to him.

Rule 13.01 of the Family Law Rules 2004 imposes a general duty to give full and frank disclosure but Rule 13.07 narrows the duty to "each document that is or has been in the possession, or under the control of the party".

The Full Court referred to the case of Schweitzer & Schweitzer where it was said that a beneficiary of a discretionary trust "is entitled to access to the financial documents of the trustees only for the purpose of ascertaining that there is due administration [of the trust]".  

Therefore, the Full Court concluded, the documents could not be said to be in the requisite possession or control of the husband.

Having succeeded on this ground of appeal (among others) the Full Court concluded that there was a flawed foundation for the trial judge's Orders. The matter will now be re-determined. 

Increase to Court fees

As part of the biennial fee review the fees payable in the Family Court and the Federal Circuit Court will increase from 1 July 2016.

Some of the increased fees are:

• Application for Consent Orders - $160 (up from $155)
• Application for Divorce - $865 (up from $845) and 
• Setting down for hearing fee in the Family Court - $825 (up from $805).

Application for Divorce

With the introduction of the Family Law Act in 1975 the principal of no-fault divorce was established in Australia.

This means that when an Application for Divorce is made the Court does not consider why the marriage ended. The only consideration is that the marriage has broken down irretrievably - there is no reasonable likelihood of the parties reconciling their relationship.  

How does the Court determine that the marriage has broken down irretrievably? The criteria used is that the parties have been separated for 12 months and one day.

If the Court is satisfied that the parties have been separated for 12 months and one day the Application will be granted.

There can sometimes be a dispute about the date of separation - and hence if the 12 months and one day has occurred - and it can be necessary for evidence to be adduced to satisfy the Court of the date of separation.

Indeed, that the required 12 months and one day has not passed is one of only two grounds where an Application for Divorce can be opposed by the other party (the other is that the Court does not have jurisdiction). If a Response is filed refuting the date of separation the Court will consider the matter and determine if the Divorce Order will be made. 

Varying existing Court Order's about parenting matters

The Family Law Courts have a clear principle that a Court should only hear an application to vary an earlier Order if it is satisfied that there is some changed circumstance which would justify such a serious step. This is known as the "rule in Rice and Aspland".

The rule in Rice and Asplund applies whether the earlier orders were made by consent of the parties or after a contested hearing before the Court.

The principle underpinning the rule in Rice and Asplund is that there should be an end to litigation, that is the avoidance of endless litigation between parents examining again and again the same issues and arrangements.

However, there are instances where it is necessary for a Court to revisit earlier Orders. While there is no exhaustive list of what constitutes a changed circumstance in previous cases this has included psychological and physical changes in the child, evidence of violence towards the child, a parent's recovery from former mental health issues, a proposed relocation by one parent and a parent's new stable relationship or marriage.

Should one parent bring an application to revisit earlier Orders and a Court be satisfied that there is a changed circumstance than the matter is considered again by the Court and new Orders may be made. 

Changes to surrogacy laws

In December 2015 the Federal Parliament passed the Family Law Amendment (Arbitration and Other Measures) Rule 2015.  These amendments to the Family Law Act are in part in relation to how the Family Court is determine surrogacy proceedings, and in particular the evidence that is required to presented to the Court in such proceedings.

The amendments provide that evidence is to be adduced to the Court from the applicants as their personal circumstances, from the birth mother as to her personal circumstance and in particular whether she provided informed consent and whether she received counselling and legal advice and evidence is also required in relation to the identity of the child including in relation to citizenship. A copy of any surrogacy agreement is also to be presented.

It is also necessary for evidence as to the relevant law in the child's country of birth to be provided to the Court. 

Child support agreement between Australia and New Zealand

In 2000 an agreement was signed between Australia and New Zealand which sought to facilitate the recognition and enforcement of child support decisions between the two countries.

A fundamental premise of the agreement is that while child support assessments, liabilities and orders of one country can be subject to applications in the other country, any orders made in the second country can only become binding if endorsed by the originating country.

The recent decision by the Full Court of the Family Court in Child Support Registrar & Higgins [2016] confirmed this.

In this matter the mother, a New Zealander, had obtained a child support assessment from the relevant New Zealand agency. The Australian father subsequently sought an order from the Federal Circuit Court here that the assessment be dismissed or that it was unenforceable. Orders were made by the Court stopping the enforcement of the assessment. The New Zealand agency advised the father that the orders were not acceptable as only a New Zealand court could make such a final order. The New Zealand agency subsequently lodged the assessment with the Australian agency for collection. The Australian agency then became involved in proceedings and appealed the orders that had been made on the basis that they were unenforceable.

The Appeal was wholly successful and the Court confirmed the principles of the 2000 agreement. 

Victorian Royal Commission into Family Violence

The Report of the Victorian Royal Commission into Family Violence was tabled in the Victorian Parliament on 30 March 2016.

The Report contains 227 recommendations including:

•  New laws to establish a Central Information Point to funnel information about perpetrators;
• Support and safety hubs throughout the State;
• A 'blitz' to rehouse women and children who have fled family violence;
• An immediate funding boost to services that support victims and a dedicated funding stream for preventing family violence – including an investment in respectful relationships education at schools and family violence training in key workforce's (such as hospitals and schools);
• An expanded investigative capacity for police – including a trial of body-worn cameras;
• More specialist family violence Courts that can deal with the criminal, civil and family law matters at the same time; and
• An independent Family Violence Agency to review government policy and action.  

The Victorian government had promised to adopt the recommendations in the Report, prior to it's release. It will be of interest to see the roll out of the recommendations - not just in Victoria but as to whether other States follow Victoria's lead. 

How to help a friend going through separation

Family law is such a multifaceted jurisdiction that obtaining expert legal advice as a necessity. With the complexities of modern life - with everything from stepfamilies to intricate family trusts - the days of armchair advice may be over.

What has not changed however is a persons need to have a friend talk to. But knowing the right thing to say can be overwhelming especially considering the emotional sensitivity of the issues involved.

While each separation will be different here are a few tips for helping a friend during this time:

• be calm and rational - encourage them to see that time or more information may help them make a more informed decision;
• be objective - help them focus on the practicalities;
• encourage them to seek assistance - to see a lawyer to sort through things but also their doctor or a councilor if necessary; and
• Lastly, just be there for them as their friend. 

When a parent retains a child

From time to time the media will report that a child has been retained by one parent.

If the child is in Australia the parent who does not have the child can bring an application with the Family Law Courts to try and recover the child. This is known as a 'recovery order'.

It is necessary to present any existing orders, where the child usually lives, when the child ought to have been returned, where the child could be, steps that have been taken to locate the child, why it is in the child's best interest to be returned and the likely impact on the child if a recovery order is not made.

If the parent with the child participates in proceedings the Court will make an order as to which parent the child should be pending further order being made.

If the parent with the child cannot be found the Court can order that a person, such as a police officer, take appropriate action to find, recover and deliver the child to the applicant parent or some other carer. The steps that can be taken include stopping and searching vehicles, vessels or aircrafts and the searching of any premise or place where the child reasonably could be.

The Court can also order a 'location order' to obtain information from a government agency about the child's possible location. The Court can also make a 'publication order' which allows the media to publish the details and photographs of the missing child.

Amalgamation Bill passes the Senate

I mentioned in a post back in December last year, Proposed Amalgamation of the Federal Courts, that the Government had introduced a Bill to amalgamate the three Federal Courts into one administrative body.

The Courts Administration Legislation Amendment Bill 2015 has now been passed by the Senate and is currently before the House of Representatives.

The view of the Government is that the amalgamation will result in administration savings that can be used to to help fund the Courts in the future.

Appealing Orders made by consent

In the case of Charring & Bunt the Appeal Court of the Family Court set out a clear annunciation of the issues involved in attempting to appeal parenting orders that were made by the consent of both parties.

Justice Ryan stated "the fact that an order is made by consent does not make the order any different to an order made after a hearing." Her Honour went on to say that that there was one important qualification however: "the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party's right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence or the absence of jurisdiction."

In this case, Justice Ryan found that while the mother's complaint that the Independent Children's Lawyer (ICL) was biased had "the flavour of vitiating grounds" (with the allegation perhaps being mistake on behalf of the ICL) the ICL was entitled to form a view about the outcome and merely because that approach differed from the mother's that did not amount to error. Further, that the mother was not aware that the father had not attended upon a psychologist was also not grounds for overturning the consent orders as that information had been available in the available subpoena material and a decision was made by the parties to enter into the consent orders without consideration of that material.

The mother's application for appeal therefore failed. 

Ongoing funding crisis in the Family Courts

Late last year I wrote about the crisis in the Family Law Courts. It would appear that in the new year no improvements have occurred as recently the ABC reported on a matter from the Wollongong area having to be sent to Brisbane for the hearing.

The ABC interviewed a local solicitor who pointed out that this was distressing for the family involved as it will increase the costs involved in the hearing, both in terms of their personal travel costs but also the legal costs of their solicitors. The solicitor added that the reason the transfer was that other matters were already being given a date 2 years away and having the matter heard in Brisbane was the earliest date that could be given.

The report went on to note that the federal Attorney-General has still yet to appoint two judges to replace two retired judges.

http://www.abc.net.au/news/2016-01-15/judge-shortage-forces-nsw-family-interstate-for-court-hearing/7090164

A creditor, a bankrupt and a Binding Financial Agreement

The difficulties that arise in relation to enforcing a Binding Financial Agreement that provides for the division of assets and liabilities between a couple has increased following the recent decision of Grainger & Bloomfield.

In this case Ms Bloomfield obtained a judgement debt against Mrs Grainger for $2,100,000 in 2011. On 14 October 2012 a bankruptcy notice was served on Mrs Grainger. On 1 November 2012 Mr and Mrs Grainger entered into a Binding Financial Agreement that provided for Mrs Grainger to transfer her interest in a property to Mr Grainger. Mrs Grainger became a bankrupt on 7 January 2013.

Ms Bloomfield applied to the Court to set aside the Binding Financial Agreement. Ms Bloomfield was seeking that Mr Grainger transfer the property to Mrs Grainger's Trustee in Bankruptcy or alternatively pay the Trustee the equivalent value.

Mr Grainger responded arguing that as Mrs Grainger was a bankrupt Ms Bloomfield, as a creditor, did not have standing to bring her Application.

The first Judge decided that Ms Bloomfield did have standing. Mr Grainger appealed.

On appeal the Full Court of the Family Court agreed that Ms Bloomfield had standing to bring her application as, while the Family Law Act had been amended to restrict applications by creditors seeking involvement in property division proceedings nothing in the Act stopped a creditor bringing an application to set aside a Binding Financial Agreement.

Whether the Binding Financial Agreement should be set aside will now be determined by the Court. 

Valuing a business for family law property division

The valuation of a business is a complex objective. When it is to be done for consideration of how to divide property in family law matters it is even complex.

This is because the concept of 'fair market value' - the price that might be negotiated in an open market between an informed and willing buyer and an informed and not anxious seller, both acting at arms length - is confronted by the strategic interests that are characteristic of family law disputes.

In family law, allegations can be made that the value of the business has changed since separation. For example, one party has eroded the working capital, or that assets have now been hidden, or even that existing trade has been deliberately impaired. The party working in the business may allege that public statements by the other party following separation are harming the operation or profits of the business.

These issues are all relevant in the preparation of a business valuation.

But even in the absence of such allegations the value of a business will simply be influenced by the "value to the owner"; so that the history of a business having been passed down through a family, or established with another family member, the continued employment of a party or even that the business operates out of the family home are also considered in valuing a business for family law purposes.

Parliamentary inquiry into surrogacy

Shortly before the end of last year it was announced that the Attorney General has asked the House of Representative Standing Committee on Social Policy and Legal Affairs to inquire into the regulatory and legislative aspects of international and domestic surrogacy arrangements.

The Committee is to consider:

• The existing legislative arrangements, policies and practices and existing international obligations – including family law, immigration, citizenship, child support, passports and privacy – and inconsistencies that exist;
• Medical and welfare aspects, including the role of health care providers and welfare services;
• Issues about informed consent, exploitation, rights, payments and protections; and
• Information sharing between the states and territories and the Commonwealth.

The Committee's report is due by 30 June 2016.

The difficult role of an Independent Children's Lawyer

Late last year a Family Court judgement made headlines when orders were made that provided for the children's lawyer to remain appointed until the youngest child turned 18.

An independent children's lawyer is bound to seek Orders in the children's best interests. Their appointment is for the length of the Court proceedings.

The children's lawyer in the matter of Stacey & Woden however was left in a difficult position.

Allegations that the children were at risk of harm from the father had been made by the mother. The Court expert that found that there were risk factors present, a Police investigation commenced and Child Protective Services conducted an inquiry. But in the meantime the parents recommenced the children spending unsupervised time with the father.

Both the Police and Protective Services investigations resolved that no further action could be taken.
    

The Court then had to determine, without the benefit of a contested trial as the mother had withdrawn from the proceedings, whether the existing arrangements whereby one child lived with him and the other spent time with both where in the best interests of the children.

The independent children's lawyer, arguing that the risk was unacceptable but that no other protective course was available, took the unusual step of seeking to remain appointed so that he could continue to liaise with children's school and medical practitioners and Child Protective Services into the future. In making the Orders the Court acknowledged the onerous task ahead for the lawyer.