Proposed amalgamation of the Federal Courts

Last week the Courts Administration Legislation Amendment Bill 2015 was introduced in the Senate. The proposed legislation is intended to bring the Federal Court of Australia, the Family Court of Australia and the Federal Circuit of Australia into a single administrative entity and make legislative provision for the courts to share corporate services.

In light of the funding crisis being experienced by the Federal Courts at this time it would appear that an aim of this proposed legislation is to save money in relation to administration costs. However, a concern has been raised in relation to the Bill as to whether expected savings can be achieved - without cuts to services.

Family Courts in crisis

You may have seen some media items recently regarding the current state of the Federal Circuit Court (FCC).

The FCC is responsible for the vast majority of family court proceedings.

The media has recently reported that the Chief Judge of the FCC is considering moving Judges from the Wollongong and Parramatta registries to the Sydney registry. The Court was quick to clarify that there was no current intention to close the registries in those areas, just that it was considering moving Judges to Sydney to cover the severe time delays being experienced in the Sydney registry at the moment. It is said that these are steps that the Court does not want to take but must consider in light of the funding crisis.

The media have also reported on a KPMG report, commissioned by the current Federal government, that reportedly concluded that there was an immediate need for the injection of millions of dollars simply to preserve the operation of the Courts.

The Family Law Section of the Law Council of Australia has called on the Federal government to immediately commit the funds to ensure the continued operation of the Courts, including the immediate appointment of Judges to meet the needs of the community. The press release from the Section stated "Families involved in the family law system already face delays of more than three years in waiting for a judge to hear their case. ... For Judge Pascoe to now have to consider closure is an indictment of the government's commitment to the administration of Australia's legal system ... No government that claims to be committed to justice and to addressing the scourge of family violence could permit the Federal Circuit Court to consider the closure of these registries"

Property division 20 years after separation

In the recent case of Vega & Riggs the Court had cause to consider whether proceedings could be bought in relation to a property division some 20 years after the parties separated.

The parties were married in 1979, separated in 1990 and were divorced in November 1992. Any application for property division was therefore required to have been made by November 1993. No such application was made.

The husband commenced proceedings in 2015. The primary asset in dispute was a property the parties owned together.

Section 44 of the Family Law Act 1975 provides that the Court can grant leave for proceedings to be commenced out of time if it is satisfied that "hardship would be caused to a party … if leave were not granted".

The Court stated that two questions needed to be determined: 1) whether the Court is satisfied that hardship would be caused to the husband and 2) should the Court exercise its discretion to grant leave.

The Court stated that the test of hardship could be satisfied if the husband could establish a prima facie case that he has a claim of some significance to pursue and that he would be consequently worse off if leave was not granted for him to pursue that claim.

The Court heard that the husband had contributed to the purchase of the property, contributed his income during the marriage and had continued to pay for the mortgage and other outgoings since separation. The husband had lived in the property since separation. The husband, now 70, had significantly more constrained financial circumstances in 2015 than the wife.

The Court accepted that the husband had a prima facie claim and that he would be worse off if he could not pursue his claim.

In determining the second question of whether the Court should exercise its discretion the Court found that although there had been a delay of some 20 years the parties had in fact been in negotiations off and on during that period and that they had both participated in the delay.

The Court granted leave for the application to be made. 

Family Law Amendment Bill introduced into Parliament

On 25 November 2015 the Government introduced the Family Law Amendment (Financial Agreements and Other Measures) Bill 2015 into Parliament.

The amendments proposed in the Bill include measures designed to:

• Address current uncertainties in relation to binding financial agreements;
• enable State and Territory Courts making an interim family violence protection order to suspend or vary existing parenting orders pending further order; and
• strengthen Australia's laws against international parental child abduction by introducing new offences relating to the wrongful retention of a child overseas.

The Bill is yet to be considered by Parliament. 

Changes to passport requirements for children

A number of changes have been made to the legislation that governs passports for children, in particular the consent required for the issuing of travel documents for children. This has obvious importance in relation to family law.

The Passports Legislation Amendment (Integrity) Act 2015 came into force on 8 October 2015 and the new Australian Passports Determination 2015 commenced on 1 October 2015.

Section 11 of the Passports Act has been amended to change the definition of "parental responsibility" to better reflect that used in the Family Law Act. The amendments provide that a person who does not have parental responsibility for a child, even if they spend time with a child in accordance with a Court Order, is not required to consent to the child having an Australian travel document (e.g. a passport).

Other amendments include:

·    that the word "locating" has been removed from the special circumstances where it is not possible to contact the other parent – e.g. this resolves the issue of when you can locate the other parent but not get in contact with them;

·    the requirement, if the other parent is missing, for the other parent to be missing and presumed dead has been modified to missing and/or presumed dead – removing the requirement to produce a death certificate; and

·    the Department may disclose information relating to Court Orders or proceedings to verify if the Orders are correct, remain valid and no other orders have been made or are pending.

Welcome to new Judge

Today the Newcastle and Hunter legal community welcomed Judge Middleton to the city and offered congratulations on his appointment to to the Federal Circuit Court of Australia.

Judge Middleton, who practiced in family law and crime as a solicitor before continuing that practice once he went to the Bar in 2007, is a very welcome addition to the Judges who so ably serve the community here.

Family Law Council's interim report on 'Families with Complex Needs and the Intersection with Family Law and Child Protection Systems'

Last year the Federal Government commissioned a report from the Family Law Council to provide a response to concerns about the federal family law system's interaction with the State based child protection and family violence systems. Last week the Attorney-General released the interim report. The final report is due to be finished by June 2016.

The Family Law Act empowers the Family Courts to make orders about who will have parental responsibility for a child, who a child will live with, how much time they will spend with the other parent or other family members and how they will communicate with family. The Act does not empower the Courts to make orders placing children in the care of a person who is not a party to the proceedings and there is no general 'child protection' power in the Act. Such powers are the domain of the State and Territory children's courts.

The Council identified, based on empirical studies, that many families affected by multiple risk issues present at the Family Courts and rely on the assistance of family relationship centres and family lawyers. The issues involved are a significant feature of the modern family law system. Indeed recent research conducted by the Australian Institute of Family Studies shows that while there has been a reduction in Court filings in the Family Courts since 2006 the proportion of contested parenting matters involving families with complex needs has increased over this period.

The interim report was asked to address the questions of:

1. the possibilities for transferring proceedings between the Family Courts and the State and Territory courts exercising care and protections jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation); and
2. the possible benefits of enabling the Family Courts to exercise the powers of the relevant State and Territory courts including children's courts and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes. 

In coming to it's interim recommendations the Council said "it is essential that the criminal law, child protection and family law systems, along with relevant federal, state and territory agencies, are encouraged and supported to work collaborative to achieve safe outcomes for children."

The Council identified two aspects of the current legal system that impede the protection of children: 

1. the increasingly public law nature of the parenting order work of the Family Courts which were designed to deal with private law matters; and
2. the separation of courts and systems dealing with parenting orders, child protection and family violence matters. 

Council made 6 recommendations. 

The first four relate to 'enhancing the capacity for courts to exercise multiple jurisdictions': 

1. That section 69J and 69N of the Family Law Act be amended to remove any doubt that children's courts are able to make family law orders under the Family Law Act & that the government consider the appropriate process of appeal from family law decisions made by state and territory courts;
2. That Part VII of the Family Law Act be amended to provide simplified decision making framework for interim parenting matters; 
3. That the Family Law Act be amended to enable judicial officers to deliver 'short form' judgements in interim proceedings; and
4. That the government implement Recommendation 16-5 of the Australian and NSW Law Reform Commissions' 2010 report - namely that section 68T of the Family Law Act should be amended to provide that, where a state or territory court, in proceedings to make an interim protections order under state or territory family violence legislation revives, varies or suspends a parenting order under section 68R that parenting order has effect until a) the date specified in the order b) the interim protection order expires or c) further order of the Court. 

The final three relate to 'enhancing inter-jurisdictional collaboration'.

1. The Attorney-General raise the following matters at the COAG level: a) the development of a national database of court orders to include order the Family Courts, the state and territory children's courts, state and territory magistrates courts and the state and territory mental health tribunals, so that each has access to the other's orders b) the convening of regular meetings of relevant stakeholder organisations to explore ways of developing an integrated approach to the management of cases involving families with multiple and complex needs c) amending the prohibition of publication provisions in state and territory child protection legislation to make it clear that these provisions do not prevent the production or reports prepared in those proceedings in family law proceedings d) the entry into Memorandum of Understanding by state and territory child protection agencies and the federal family courts to address the recommendations of Professor Chisholm's reports e) the co-location of state and territory child protection department practitioners in federal family court registries and f) the development of dual competencies for Independent Children Lawyers to achieve continuity of representation for children where appropriate;
2. The Council has previously made recommendations in relation to a number of these issues in the Council's 2009 report 'Improving Responses to Family Violence in the Family Law System' these include: a) the adoption of consistent terminology in orders relation to children across relevant State and Commonwealth legislation so that orders are more readily understood by parents and carers of children and those working in family law and child protection, including law enforcement b) the Attorney-General facilitate the development of protocols for the collaborative exchange of information between the family courts and child protection departments, police and mental health services. Council recommends that these matters be placed on the COAG agenda. The Council has previously made recommendations in relation to the issue of Aboriginal and Torres Strait Islander family liaison officers in its 2012 report 'Improving the Family Law System for Aboriginal and Torres Strait Islander Clients' these include the Australian Government provides funding for further positions for Indigenous Family Consultants and Indigenous Family Liaison Officers to assist the family law courts to improve outcomes for Aboriginal and Torres Strait Islander families. Council recommends the government implement this recommendation. 

The report can be found at: http://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Family-Law-Council-Interim-Report-Family-Law-and-Child-Protection.pdf 

And another Court fee update

The fourth ... and I don't think final ... update on the Court fees.

The Court fee increases introduced on 13 July 2015 by the Family Law (Fees) Amendment (2015 Measures No 1) Regulation 2015 were disallowed by the Senate on 11 August 2015. This means that the Court fees have returned to the previous fees again.

It is anticipated that there will be further news in relation to the fees in due course.

Appealing orders made by consent

In the recent case of Charring & Bunt the Appeal 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.

The mother, who was appealing out of time, seemed to be asserting three ground of appeal: bias on the part of the Independent Children's Lawyer (ICL), the father's alleged failure to comply with orders regarding his attendance upon a psychologist and the possibility that the Department of Community Services would seek to have a Magellan Report ordered.

Justice Ryan set out that "the fact that an order is made by consent does not make the order any different to an order made after a hearing. The order derives its force from the circumstances that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order."

Her Honour went on to say that the 'important qualification' is that "the correctness of an order may not be appealed on it 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 instance, while the mother's complaints about the ICL 'had the flavour of vitiating grounds' (with the allegation perhaps being mistake) the ICL was entitled to form a view about the outcome and merely because that approach differed to the mother's could not amount to error. Further, nor could the fact that the parties entered into the consent orders prior to reviewing the subpoena material (although not stated in the judgement this appears to relate to the father's lack of attendance on a psychologist) - "that was a forensic decision which could not now impugn the orders on appeal." Finally, if the Department has initiated the Magellan program that does not establish a basis for appellate intervention.  

On that basis the mother's leave to appeal was not allowed.

Can a binding financial agreement be repudiated?

The Full Court of the Family court is frequently asked to consider whether a binding financial agreement entered into by parties during their marriage can be upheld following the end of their marriage.

The recent case of Donald & Forsyth was one such instance.

The 2005 agreement provided that the parties would sell a property in "Town A" (acknowledged to have been the wife's and 50% sold to the husband for $132,000 which he had repaid $82,000 by July 2005 and was to repay the remaining $50k in $1k instalments) with the net proceeds to be divided equally - save for any outstanding amount owed by the husband which was to be paid to the wife from his share. The agreement also stated that the parties otherwise retained their separate property.

Judge Demack had made orders setting aside the agreement - the husband appealed those orders and the wife opposed the appeal.

Before Judge Demack the wife sought to set aside the agreement arguing that the agreement had been obtained by fraud (non-disclosure of material matters by the husband) and that the agreement was impracticable (that due to her ill health it was no longer practical that she keep the other property she owned and sell the Town A property). Additionally, the wife argued "that in any event, the contract [had] been rescinded by the husband's repudiation."

Judge Demack did not agree with the first two arguments but decided that the agreement had been repudiated and therefore must be rescinded. In answering this question her Honour found the husband's actions in seeking orders, that "move away from the provisions of the financial agreement", namely seeking "that he not be responsible for the good repair of the property in the equal terms that the agreement required" and seeking that the wife pay one half of the equivalent market rent for the Town A property pending its sale where acts of repudiation. In conclusion though her Honour found that "...the [agreement] has been repudiated by the acts of the husband" and it must be rescinded.

The Husband advanced 7 grounds of appeal but only 1 and 5 were addressed by the Court: The principal complaint in Ground 1 appears to be that her Honour failed to consider, and make all of the findings necessary, to be able to conclude that the husband had repudiated the agreement and that it could be rescinded on that basis. That clearly brings into play Ground 5, where the complaint is that her Honour failed to provide adequate reasons for her decision in that it is not possible to discern the path that her Honour followed.

Justice Strickland & Ryan stated that there can be no dispute as to the principles that are to be applied in determining whether a party to a contract has repudiated that contract so that the other party can terminate the same. Those principles are:

• there must be either a breach or an anticipatory breach of an essential term of the contract, or a sufficiently serious breach of a non-essential term; and 
• the other party must be ready and willing to complete the contract. 

The accepted test in relation to anticipated breach is whether or not the words or conduct of the party would lead a reasonable person to conclude that the party did not intend or was unable to perform the contract. The submission of the husband was that the words or acts of the husband were ambiguous or equivocal, and thus could not be said to constitute an anticipatory breach. The Full Court said: "Applying that test we are comfortably satisfied that the words used in paragraph 19 of the affidavit are clear and evince an intention not to be bound by Clause 18.3.2 of the agreement. Accordingly, although her Honour did not address this issue expressly, we find no error in her Honour effectively finding anticipatory breach by the husband."

Given that finding her Honour was obliged to then consider whether the relevant term of the agreement was an essential term, or if not, whether the anticipatory breach was a sufficiently serious one to justify termination of the agreement. However, the Full Court found that her Honour failed to address either of these requirements, and this alone provides a basis for appellate interference.

Justice May said "plainly there is no express statement by the parties that that term is to be treated as an essential term of the contract ... The essential term in this regard was that the house be marketed in good repair, and this is not a term that the husband sought to breach; he was challenging the deduction of the costs of repair from the proceeds of sale."

Further, the Full Court noted that in order to rescind the agreement the wife relied on paragraph 19 of the husband's affidavit filed on 4 May 2011. It was then on 14 November 2011 that the wife through her solicitors terminated the contract. However, the incontrovertible facts are that from the time of the breakdown of the marriage (29 February 2008), the wife had not been prepared to sell the Town A property as required under the terms of the agreement. Thus the wife was not ready and willing to complete the contract herself.

The Full Court concluded "For these reasons we find that there has not been a repudiation of the agreement by the husband such that the wife is entitled to rescind the same, and we propose to set aside her Honour’s orders. The effect of this is that the husband is able to pursue his application in the Federal Circuit Court of Australia to enforce the agreement."

Yet another update on Court fees

The third - and hopefully final - update on Court fee increases.

The Family Law (Fees) Regulation 2012 has been amended by the Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015 to increase and introduce new fees with effect 13 July 2015. Changes include:

• An increase in the divorce fee to $1,200
• An increase in the fee for consent orders from $155 to $240
• An increase in the fee to issue subpoena from $55 to $125
• A new fee for filing amended application of $125; and
• An increase in all other existing fees by an average of 11%

Further update: Court fee increase disallowed

The Federal Courts Legislation Amendment (Fees) Regulation 2015 which was to increase fees in the family law courts was disallowed by the Senate on 25 June 2015.

The fee increase set out in my previous post will therefore not be implemented.

Update: New Court fees

I posted a week or so ago about the announcement in the budget that Court fees will be increasing as at 1 July 2015.

The Federal Courts Legislation Amendment (Fees) Regulation 2015, assented on 28 May 2015, sets out the new fees. The most common are:

• The filing fee for an Application for Divorce is increasing from $845 to $1195;  
• The Initiating Application fee increases from $320 to $350;
• The fee to issue a Subpoena increases from $55 to $120;
• An Application for Consent Orders fee increases from $155 to $235; and
• The setting down for hearing fee increases from $805 in the Family Court and $590 in the Federal Circuit Court to $885 and $650 respectively. 

There is also a new fee that has been announced - for filing an amended Initiating Application or Response. The fee is $120. Previously there was no fee to file an amending document. 

Amalgamation of Tribunals

The Tribunals Amalgamation Act 2015, passed by Parliament on 13 May 2015, will come into effect on 1 July 2015. From that date the Social Security Appeals Tribunal, along with the Migration Review-Refugee Review Tribunal will join the Administrative Appeals Tribunal.

The amalgamation is expected to generate efficiencies and savings through sharing financial governance, IT and human resources.

For the large part the current processes for each Tribunal will be maintained and the legislation provides for the work of the existing Tribunals to be conducted by a special division within the Administrative Appeals Tribunal. Existing applicants will not need to submit a new application as all undecided reviews will automatically be transferred to the new Tribunal.

However, of note in family law matters is some changes in relation to child support matters - currently conducted by the Social Security Appeals Tribunal. Judicial reviews will now be to the Federal Circuit Court and the Federal Court rather than to the Family Court. 

Budget announces increase to Court fees

Last week's federal budget announced expected changes to the fees in the Family Court and Federal Circuit Court. The changes, likely to take effect from 1 July 2015, are expected to raise around $87 million in the federal courts.

While no specific fee changes have yet been announced media reported last week that the fee for divorce applications, currently $845, would rise to $1,200, and the fee for an Application for Consent Orders would rise from $150 to $240. According to the Sydney Morning Herald the Attorney General George Brandis confirmed that fees will increase but said that details would not be known until July.

The Australian quotes the head of the Law Council of Australia's family law section, Rick O'Brien, who said "We have not yet been told what the proposed fee increases will be, but we would be extremely concerned that any fee increases would severely restrict access to the courts by people most in need." The paper went on to quote the immediate past head of the section, Mr Sinclair, who expressed concern that the increase to the consent order fee would discourage parties from trying to resolve their dispute by proper process which could lead to problems later on.

When will a tax liability not be a joint liability?

The recent case of Adair & Milford [2015] addressed a number of issues, as is usually the way, but of particular interest was a question that arose in relation to the husbands tax liability.

In the first trial the Judge had found that the husband had an outstanding tax liability at the time of separation in 2012 of $220,000 and at the time of the trial in 2014 of $419,000. The husband had ceased to pay PAYG instalments in 2011. Despite this the husband had given evidence that he was paying PAYG instalments of $4,230 per week as well as $287 per week in withholding tax at the time of the trial. The effect of the husband's evidence was to mislead the wife and the Court and to wrongly inflate his expenses so that they exceeded his income - which was not the case. The trial Judge then went on to examine the husband's income and expenses and found that the husband did have the capacity to have been paying the tax liability. The Judge held: "I accept that he was making a significant contribution to the wife, the children and the mortgages but at the same time, he made no arrangement with the Australian Tax Office notwithstanding the Court was under the impression that amounts were being set aside on a weekly basis. In my view, it would not be fair now to attribute the debt to the wife."

On appeal the husband argued that the trial Judge was in error in concluding the amounts of tax owing. The Appeal Court noted that "it is beyond dispute that the husband's evidence on this topic [at the trial] was imprecise and that no criticism can be levelled at his Honour's decision to accept the husband's evidence that as at separation he was indebted to the ATO in that amount."

The Appeal Court noted that there is no principal of general application that merely because a taxation debt accrued prior to separation it must be brought to account as a joint matrimonial liability: Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor (2009). The Appeal Court went on to say that to their view the facts of the case amounted to "compelling circumstances" - as announced by the Full Court in Johnson and Johnson [1999] - which would enable the Court to leave one party solely responsible for his own taxation debt.

The Appeal Court stated that it would have been necessary, in order for the appeal to succeed, for the husband to have successfully challenged the weight which the trial Judge placed on the husband's misleading evidence concerning the payment of his outstanding tax and to the cavalier manner in which he conducted his finances post separation.

The Appeal Court said: "The wife having been unaware prior to separation of the husband's failure to pay his taxation liabilities as they fell due and then after separation misled into believing payments were being made, it was entirely reasonable for his Honour to focus on how after separation the husband approached this debt and to ultimately conclude that the husband could and should have paid his accrued debt and tax as it fell due."

The husband was wholly unsuccessful on his appeal. The husband was ordered to pay the wife's costs of the appeal.

myGov and family law

A media release from the Minister of Human Services this week announced the launch of a new smart phone app called "Express Plus Child Support".

The new app is designed to allow parents to view letters and other communications, keep track of child support payments, update their contact and account details and advise of any important changes in their circumstances. Parents can even make payments using the app.

According to the media release if registered for myGov parents can download the Express Plus Child Support app.

This new app is the latest step in the expansion of myGov services. But other existing myGov services are also of relevance in family law matters. For example, through a myGov account it is possible to claim a range of Centrelink payments and the Centrelink Express Plus app can be used to interact with the Department in relation to those benefits. Also, once registered for myGov you can link with the ATO and then search for superannuation interests and their current balances.

What constitutes the end of a marriage?

In a couple of previous posts I have mentioned cases where the Court was required to examine the minutia of the parties lives to determine whether they were in a de facto relationship. You would ordinarily think that with marriage it would be easier to tell. However, the Court is actually frequently required to delve into the details of a marriage to determine when it ended - either for the purpose of an Application for Divorce or in order to determine the contributions that were made during the marriage in relation to a property division application.

Yesterday just such a case caught my eye when it was headlined on http://www.smh.com.au/act-news/i-wouldnt-have-married-her-if-id-known-she-had-deformed-nipples-exhusband-20150412-1milj4.html as "'I wouldn't have married her if I'd known she had deformed nipples': ex-husband".  Attention grabbing isn't it?

The case, published as Drysdale & Drysdale [2014], is a decision by Judge Neville in the ACT relating to a dispute between husband and wife as to the length of the marriage and the contributions of each of them during that time and post-separation.

His Honour stated that the husband was intent on having the Court determine the actual date of separation - "in his view it was essential that this occur because, he said ... (a) separation was in 1999, and (b) once this was established, in some way (he contended) this had the effect of quarantining his assets from the Wife's pursuit of them after that date. Respectfully the Husband was and is inaccurate in this regard in at least two respects. First, for the purposes of property proceedings, the date of separation does not, of itself, determine whether the assets of one party are or are not included in the asset pool ..."

The husband claimed that the relationship ended in 1999 but the wife stated that it ended in 2011.The husband, in his affidavit and in his oral evidence, set out his view that he intended to leave the marriage in 1974 when he had become aware of what he called a disfigurement of the wife (the Judge commented in the judgement that the description by the husband was "tersely lurid and doubtless hurtful"). The husband claimed that he nonetheless stayed with the wife for the children.

His Honour noted "whatever the Husband subjectively thought or intended regarding the date of the end of the relationship, it is for the Court to make determinations objectively in the light of the evidence presented to the Court.

Judge Neville determined the date of separation as 2011.

In doing so the Judge observed the following:

• The couple were married in 1972. The first child of the marriage was born in 1974 and two further children followed.  
• Attached to the wife's affidavit were date-identified photographs of the parties, post 1999, which suggested that the parties presented publicly - and did so over a period of time - as a couple. There was also affidavit material from friends stating that the parties appeared publicly as a couple. 
• The parties attended various family events, went to dinner with friends and alone together, and continued to go on holidays between 1999 and 2011. The husband claimed that he attended these events as a friend, or father to his children. 
• The husband completed the wife's tax return until 2002.
• In 2004 AAT proceedings the husband identified the parties as husband and wife.
• The parties utilised a shared credit card until 2007.
• The parties attended marriage counselling together during this period. 
• The husband confirmed that they slept in the same bed together - at least until 2006.
• No family members were told of the separation until 2011. Indeed the husband gave evidence that he was annoyed with the wife for having told his mother of the separation in 2011.

Application for Divorce - considerations

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.

Is it a de facto relationship?

Last year I wrote an article on the concept of 'living apart together'. In that article I touched on the case of Sinclair and Whittaker [2013] where the Full Court said that "the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court and not a matter for the parties". I had cause to consider the facts of that particular case recently and they caught my attention.

The parties began dating in late 2002. In August 2004 the respondent's flatmate vacated their flat and the appellant moved some personal belongings in. The appellant began to contribute $600 each month towards the respondent's rent.

In December 2005 the parties purchased a unit with the appellant providing the deposit and paying the stamp duty. The unit was put in the name of a corporate entity wholly controlled by the appellant with a 70% interest to the corporation and 30% to the respondent. The respondent and the corporate entity jointly borrowed monies from the appellant's business which was a mortgage provider.

The respondent described herself as single on forms to do with the purchase when an available option was de facto. The parties each contributed $15,000 to a fund which was used for the purchase of furniture and accessories for the apartment and they shopped for those items together.

The appellant stayed at the unit on average three nights per week but left at 4:15 AM each morning to commence work from his own premises.

The parties spent many weeks each year away together and enjoyed time with the respondent's family in Queensland between 2 to 4 times per year.

The respondent described herself as single and not in a de facto relationship on documents provided to the ATO.

On 21 December 2006 the appellant gave the respondent a 2.17 carat diamond ring which was found to have been described by the appellant as a promise ring.

The relationship broke down on 21 September 2010.

The appellant claimed to have had relations with other women during the period of the relationship however the appellants driver gave evidence that was inconsistent with this statement.

Thoughts?

The trial judge concluded, based on those facts, that the parties had been in a de facto relationship. On appeal the Full Court was satisfied that that decision was open to the trial Judge on the facts before him and no error in His Honour's reasoning was identified.

Varying existing parenting Orders - "the rule in Rice and Asplund"

The Family Court and the Federal Circuit Court of Australia 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 parents recovery from former mental health issues, a proposed relocation by one parent and a parents 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.

Court filing stats

The Australian Bureau of Statistics (ABS) has released its figures on the Family Law Courts. They cover the period 2004/5 to 2012/13.

The key findings were:

• Court filings in children's matters in 2012/13 reflect a 25% decrease on the 2004/5 levels.  
• In relation to property matters there has been a 17% increase in filings.

These figures are interesting as they potentially reflect two events that occurred between 2004/5 and 2012. 

Firstly, in 2006 amendments were made to the Family Law Act designed to decrease the level of parenting litigation (covering children of both married and de facto couples) and instead to encourage parties to use services such as mediation to resolve disputes. This may explain the decrease in the children's matters filing levels.

Secondly, in 2009 further amendments were made to the Family Law Act which brought the property division of separating de facto couples under the Family Law Act for the first time. This may explain the increase in property matter filing levels. 

The report can be found at: www.aifs.gov.au/institute/pubs/resreport30/index.html 

Court resources

Family law in Australia is served by two Courts, the Family Court of Australia and the Federal Circuit Court.

The two Courts both have jurisdiction under the Family Law Act but matters are divided between them in accordance with a Protocol which essentially sees the more complex matters heard by the Family Court and the vast majority of matters heard by the Federal Circuit Court. According to the available data in 2013/2014 the Family Court received 2,923 Applications for Final Orders while in 2012/2013 the Federal Circuit Court received 17,363 Applications for Final Orders.

While there may be a division of work between the two Courts both Courts deal with incredibly important issues relating to the breakdown of a relationship or marriage, including who is to care for the children and how people are to divide their assets. Delays in having the Courts determine such matters has an impact on the lives of the parties, their children and everyone in their extended families and support network.

The Courts are facing something of a predicament with both Courts facing the retirement of many Judges. The Federal Circuit Court will have, over the next year, the departure of 12 - or around a quarter of its Judges.

The Chair of the Family Law Section of the Law Council of Australia, Rick O'Brien, has said "The family courts are genuinely in crisis, and with these retirements things are going to get worse."

Chief Judge of the Federal Circuit Court has previously stated that because of a lack of funding, under staffing and an increasing workload the Federal Circuit Court is already struggling to keep up with the cases coming before it. His Honour went on to say that the replacement of Judges was "critical in ensuring that families in distress are dealt with as quickly as possible."

The President of the Law Council of Australia said "failure to adequately resource the family law system by replacing judges promptly will have a snowballing effect, the social and economic cost of which will continue to be felt by the community for years to come."

A spokesman for the Federal Attorney-General told the SMH that "In the current economic climate all areas of government, including the courts, must look for ways to work more efficiently and effectively. The Attorney-General is carefully considering all available options for any administrative and structural reform to address long-term financial sustainability of the federal courts."

This is seemingly in opposition to the views expressed by the Law Council of Australia. Duncan McConnel, told the SMH "given the significant and often traumatic emotional and financial burden on separating families, and children, the government must commit to finding additional resources to address such delays. Such a commitment requires, at the minimum, that retiring judges are replaced promptly."

What is a Case Guardian?

Generally when people separate following the breakdown of a relationship or marriage each party will seek independent legal advice to negotiate a settlement of the matters or to commence court proceedings if necessary. However from time to time questions may arise as to whether one of the separating parties has the necessary capacity to make their own legal decisions.

If someone has an illness or condition which could affect capacity and ability to provide instructions to a solicitor it is necessary to consider how instructions are to be taken and how advice is to be provided.

Sometimes it will be necessary to consult with the client's treating doctor or specialist for an opinion as to the person's capacity to understand legal advice and make legal decisions.

Should such an expert state that the person does not have capacity but the action or proceedings need to continue it will be necessary to consider whether a Case Guardian should be appointed.

A Case Guardian is appointed by the Court in accordance with the requirements set out in the Family Law Rules 2004.

Rule 6.08 provides that a person with a disability may start, continue, respond to or seek to intervene in a case only by Case Guardian.

A person with a disability is defined as a person who, because of the physical or mental disability:
a. Does not understand the nature or possible consequences of the case; or
b. Is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

Rule 6.09 of the rules state that a person may be a case Guardian if the person is:
1. An adult;
2. Has no interest in the case it would be adverse to the client;
3. Can fairly and competently conduct the case; and
4. Has consented to act as a case Guardian.

Evidence as to these factors is presented to the Court in the form of an Affidavit.

The recent case of Crowley and Child Support Registrar [2015] reviewed the appointment of a Case Guardian.

In this matter Mr Crowley's mother sought to be appointed as his Case Guardian. Mr Crowley's mother filed an affidavit with the Court setting out evidence that as a result of a motor vehicle accident in 1992 Mr Crowley suffered a severe brain injury and that in 1994 he was classified as permanently incapacitated. Attached to the affidavit was medical evidence supporting these statements. Mr Crowley's mother also stated in her affidavit that she had been appointed his Power of Attorney, was familiar with the legal issues in relation to the proceedings and had been assisting her son for some time. Mr Crowley's mother was appointed as his Case Guardian.

Defamation and family law - WA decision

One of the questions that I get from time to time is along the lines of "what can I do to stop him/her from saying bad things about me?" In the past, and still occasionally, this relates to things said in person to friends, family or co-workers but more frequently now it is in relation to comments made on social media sights such as Facebook or Twitter.

Last week the media reported on a case from Western Australia in which a husband was awarded $12,500 in damages against his estranged wife after she posted comments about him on her Facebook profile.

The post, which read "Separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe." was posted in December 2012. Ms Greeuw removed the post in February 2013 following a letter from Mr Dabrowski's lawyer. 

In a 10 day trial before the West Australian District Court Ms Greeuw argued that the statement was not defamatory or if it was it fell under the justification defence found in section 25 of the Defamation Act 2005 (WA) in that it could be proved to be substantially true.

Judge Bowden said "Domestic violence and abuse by its very nature usually occur in the matrimonial home and in the absence of independent witnesses. I accept that defamation findings can be made solely on the evidence of one partner against the other."

Evidence was given as to the nature of the relationship between Mr Dabrowski and Ms Greeuw - including contemporaneous letters between the pair alluding to holidays being ruined. Mr Dabrowski argued that the letters went to his state of mind. Ms Greeuw argued that she was the victim of years of emotional and occasionally physical violence.

While Judge Bowden found Mr Dabrowski's evidence about the nature of the relationship to be lacking credibility he found that Ms Greeuw could not establish on the balance of probabilities that she had been subject to domestic violence.

Judge Bowden stated that Ms Greewu's claim that while she had written part of that statement she had not published it and her Facebook profile had been hacked to create the screenshot of the post that was used in the trial was "implausible" and it undermined her credibility. His Honour said "... Ms Greeuw's credibility is so badly affected by the matters to which I have referred  that it leads to the conclusion that she is prepared to say or write whatever she thinks will suit her case and I would not be prepared to accept her evidence unless it is supported by independent evidence or documents contemporaneously made with the events she now complains of."

His Honour said he had "no doubt that the post caused Mr Dabrowski personal distress, humiliation and hurt and harm to his reputation and it did cause people to 'look at him twice' and be more reserved about their contact with him." and "He is an experienced educator and is entitled to public vindication."

Judge Bowden came to the amount of $12,500 (plus interest and costs) by taking into account the fact that the comment was read by a limited audience and was deleted about six weeks later. 

It will be necessary to see if there are any decisions in NSW regarding this issue. In the meantime this remains a complex issue, and this case alone will not change that.

Self Managed Super Funds - trustee penalties

Self managed superannuation funds (SMSFs) are ever on the rise in Australia and with that they are more and more frequently part of family law property settlements.

In 2014 a new administrative penalty regime came into effect giving the Australian Taxation Office (ATO) a wide range of enforcement powers to ensure SMSFs do not breach the relevant superannuation legislation.

The commentary on these changes indicates that the intention is to ensure that trustee's are vigilant in their record keeping and compliant with their duties.

The breaches covered include but are not limited to the provision of financial assistance to a member or relative, the failure to maintain adequate minutes and records and exceeding the in-house asset investment limit.

The new penalties fall into three categories:

• Administrative penalty notice; 
• Rectification directions; and
• Education directions. 

The penalty notices are fines ranging from 5 penalty units (i.e. $850) to 60 penalty units (i.e. $10,200). Penalties are paid by the trustee personally and cannot be reimbursed by the SMSF - and it is important to note that where a SMSF has individual trustees the penalty will be paid by each trustee but where there is a corporate trustee it will only be paid once. The ATO does not have discretion to reduce or withhold the penalty meaning that even inadvertent errors will attract a penalty.

Rectification directions require the trustee to take specified actions to rectify the contraventions and provide the ATO with evidence of compliance within a specified time frame.

Education directions require the trustee to undertake a specified course of education and provide the ATO with evidence of compliance of the course. Any cost for the trustee in undertaking the course is to be paid for by the trustee and cannot be paid for or refunded by the trustee. The trustee will be required to sign a declaration within 21 days of completion of the course stating that they understand their duties as a trustee of a SMSF.