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.