White Ribbon Day: domestic violence and family law

On Tuesday 25 November events took place around Australia to mark White Ribbon Day. 

White Ribbon aims to raise awareness to end men's violence against women. White Ribbon Australia observes the International Day Of the Elimination of Violence against Women, known internationally as White Women Ribbon Day, annually on November 25.

As part of this years events 1233 ABC Newcastle interviewed Federal Circuit Court Judge Myers in relation to domestic violence cases and how they impact on children.

An article in relation to the interview can be found here: http://www.abc.net.au/local/stories/2014/11/25/4135828.htm

In the interview Judge Myers said "family violence against women takes a multitude of different facets. It's not just simply someone punching a woman it's more than that; it's in overall control thing." His Honour also said you don't often see men come out and say [they're] a victim of domestic violence; it's out there…"

During the interview it was mentioned that there was 1449 domestic violence assaults reported in the Newcastle and Lake Macquarie area in the 12 months to March 2014. While those statistics relate to criminal matters (including Apprehended Domestic Violence orders) Judge Myers said the number of cases he sees in his Court is a reflection on the broader society.

Speaking about the impact of family violence in relation to family law matters His Honour said "we see a lot of parents come in [that are] probably separating too late, where really the relationship has been over for some period of time" … "I'm seeing a set of circumstances where children are growing up in a relationship in their household but they don't understand what it's like to have a 'normal' household they don't understand that it's unacceptable."

His Honour said "this isn't just something that's isolated in my court. What my court sees is simply a reflection of what is taking place in society."

Statistics on marriage and divorce

The Australian Bureau of Statistics ("ABS") has just released the 2013 statistics on marriage and divorce in Australia.

The key points from 2013 are:

• There were 118,962 marriages registered - this is a decrease of 3.5% from 2012;
• The majority of brides (81.3%) and grooms (79.7%) had not been married before;
• 76.6% of couples lived together prior to marriage. This was down by 1%;
• The median age for marriage was 31.5 years for males and 29.5 years for females. 

• There were 47,638 divorces granted - this is a decrease of 4.6% from 2012;
• The median duration of marriage was 12.1 years. This has been steadily decreasing from 12.6 years in 2005;
• The median age for divorce was 44.8 years for men and 42.2 years for women;
• 47.4% of applications involve marriages where there are children;
• 41.2% of applications for divorce were joint applications. 

Gift or loan?

I was reading an article recently about the rise and rise of parents helping their adult children to purchase property. Now this isn't a new phenomenon but given rising property prices it may be a trend destined to only increase.

According to the article on domain.com.au parents are supporting their children's home ownership aspirations by something as relatively simple as providing cash through to utilising the equity in their own home.

While the focus of the rest of the article was on the effect this can have on first home ownership statistics (if parents are on the title for the property apparently the purchase can fall through the current definition used by statisticians) it got me thinking about the impact that monies from parents can have on family law matters.

The question of how money from one party's parents is dealt with in considering how to divide the parties assets and liabilities as at separation has been a vexed one for the Court over the years.

The starting issue is whether the monies are a gift or a loan. Answering this question comes down to the evidence.

If there is a contemporary, written loan agreement than that may be good evidence of the money being a loan. Otherwise it can become a question of whose evidence is to be believed.

However, it is important to remember, even if the Court concludes that it was a loan, that the Court still has discretion as to the amount that is to be included as a liability of the parties.

For example, there may be situations where loans are made on favourable terms and not at arms length - such as where there is no interest payable or there is no fixed payment schedule. In such circumstances the Court may reduce the effective amount repayable.

In the matter of Sulo and Colpetti [2010] the Court did not include the husband's loan to his father at all as there was no evidence that the husband's father was intending to actively pursue a claim against the husband for the monies.

In circumstances were the money is a gift - either because that was always the intention or because the Court does not accept that it was a loan - the Court then needs to consider what effect if any the money has on determining the contributions made by the parties.

In some cases, such as Pellegrino and Pellegrino (1997) the Court was asked to consider the issue in the context of the parents giving the money intending to receive a benefit themselves (in that case for an extension where they were to reside).

That is, however, the exception and in the majority of matters the monies have been given to benefit the parties to the relationship.  

In the case of Gosper and Gosper (1987) the Court stated that determining if the monies where intended to benefit both parties to the relationship or only the adult child is the starting point.

In Kessey and Kessey (1994) the Full Court stated: "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 on his or her child." 

Orders for costs in family law matters

In family law proceedings before the Family Law Courts parties normally bear their own legal costs.

Despite this the court is regularly asked to consider the issue of costs. But a recent case caught my eye as it provided a review of the existing authorities on this topic. The case is known as Nada & Nettle (Costs) [2014].

On 16 July 2014 the Full Court of the Family Court dismissed an appeal brought by Ms Nada, the mother, against Orders that required her and the child to move back to regional NSW from Tasmania. In July 2012 Ms Nada had moved the child from regional NSW to Tasmania without the knowledge or permission of the father. The mother was unsuccessful on the appeal.

The father sought an Order that the mother pay his costs of and incidental to the appeal up to and including 11 March 2014 on a party-party basis and thereafter on an indemnity basis. The mother opposed the application and sought no order be made.

The Court started by setting out section 117(1) of the Family Law Act 1975 and that the guiding principle of that section is that each party to proceedings under the Act should bear his or her own costs unless the Court is of the opinion that there are circumstances that justify the making of a costs order. The Court then turned to section 117(2) which sets out matters to which the Court should have regard in determining what, if any, order should be made. In this case the matters relevant were the financial circumstances of each of the parties, whether a party to the proceedings has been wholly unsuccessful and whether either party to the proceedings has made an offer in writing to settle the proceedings and the terms of that offer.

The mother contended that her financial circumstances are such that, of themselves, there ought be no order for costs because she had no capacity to pay any costs ordered. The Court noted that while the mother stated that she did not have capacity to pay and that any order to pay would have a negative impact she did not state what capacity she did have or what the negative impact would be. The Court noted that just because "a party is impecunious, even indigent, is not a bar to the making of a costs order if the Court is otherwise of the opinion that such an order ought to be made".

The mother conceded that she was wholly unsuccessful but submitted that due to there having been two errors in the first instance judgement there was merit in the appeal. The Court determined that the mother was wholly unsuccessful and the mother was not able to demonstrate a material error of principal in the trial judge’s determination.

The next issue - and the key to the mention of the date of 11 March 2014 - was that the father made an offer to the mother on 11 March 2014.

That letter had sought that the mother withdraw her appeal and if she did so the father would not seek costs. The letter specifically stated that it would be relied upon in seeking an order for indemnity costs. The offer was rejected by the mother.

The Court considered the case of Lenova & Lenova (Costs) [2011] and quoted the following "In this jurisdiction, costs do not “follow the event” ... each party to proceedings under this Act shall bear his or her own costs ... a litigant, or prospective litigant, cannot rely upon a costs order following upon success in the action as a means of dissuading the other party from pursuing unmeritorious litigation ... A timely offer in writing genuinely made might, then, be seen as an important part of a limited armoury available to prospective litigants seeking to avoid the costs of litigation."

The Court concluded that the rejection of the father's offer was of sufficient weight to justify an order that the mother pay the father's costs of the appeal.

The question then became what kind of costs was the mother required to pay.

One way in which the Courts will do this is "party-party costs". Such costs are capped at the scale set out in the legislation. Another way in which the Court can order legal costs to be paid by the other party is through "indemnity costs". Indemnity costs are all costs reasonably and property incurred where the conduct of a party warrants such an Order being made. Indemnity costs are most frequently awarded when a party has declined an offer of settlement and has received an outcome less than what was offered.

In this case the Court looked at the established authority of Kohan and Kohan (1993) and quoted " the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind." The Court then considered what circumstances could justify a departure from party-party costs and quoted from Colgate Palmolive Co v Cussons Pty Ltd [1993] where the following list was provided "evidence of particular misconduct that causes loss of time to the court and to other parties ... the fact that the proceedings were commenced or continued for some ulterior motive ... or in wilful disregard of known facts or clearly established law ... the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions ... an imprudent refusal of an offer to compromise"

Ultimately the Court was not persuaded that neither the mother’s failure to accept the offer nor any other aspect of the case falls within the circumstances set out in Colgate-Palmolive nor was there anything in the nature of this appeal that falls within the “exceptional” case in which indemnity costs may be ordered.

On that basis the Court ordered that the mother pay the father's costs of and incidental to the appeal on a party and party basis.

Christmas already?

There is something about the very magic and significance of Christmas that makes it ripe ground for heated disputes about where and how a child with separated parents will spend Christmas.

Sometimes parents are able to sort something out - hopefully something that allows the child and both of the parents to enjoy the special time of year.

But sometimes that just isn't possible.

Because the Family Law Courts can face an increase in applications in the lead up to Christmas they place a filing deadline to try and ensure that all matters filed about parenting and Christmas will be listed before the Court for mention before 25 December.

This year the filing deadline is 4.00pm 14 November.

Mental Health and Family Law

This week is Mental Health Week. World Mental Health Day is on 10 October.

There are some great associated awareness raising campaigns - such as the ABCs "Mental As" (www.abc.net.au/mentalas) and the Promise Wall (1010.org.au).

All of which got me thinking about mental health and family law.

As you can easily imagine family law and mental health go hand-in-hand.

All relationships and families go through difficult times.

But if someone is experiencing depression, stress, substance abuse or any number of other mental health illnesses it can bring about the end of a relationship. Domestic violence, financial problems and the effects of addiction are also frequently named as causes of relationship breakdown.  

Even if mental health was not a factor in the breakdown of a relationship dealing with the decision to end a relationship can itself cause stress, anxiety and depression.  

There are a lot of organisations out there who offer services designed especially for families experiences mental health issues. Both The Family Relationships Centre and Relationships Australia offer a range of counselling and programs - including ones designed specifically for people who are separating, as well as counselling in relation to family violence and problem gambling. Other organisations such as Alcoholics Anonymous, the Financial Counselling Helpline and the National Sexual Assault Domestic Family Violence Counselling Service offer issue specific assistance. In addition there are counselling services such as Lifeline (lifeline.org.au) and the Kids Helpline available to help.

While the law has to keep adapting to ensure that it can best respond to each person it has come a long way when it comes to mental health.

"Living apart together"

Traditionally people have been categorised as 'married' or 'single'. Then sometime last century along came the 'de facto' concept.

This category is the hardest to define and the law, being the law, has tried very hard to put a definition on it.

In the family law context this is particularly relevant to property division following the breakdown of the relationship. The current law provides for de facto couples to have their financial relationship dealt with under the Family Law Act - using considerations very similar to those that apply to married couples.

Deciding if a relationship is a de facto relationship is fairly easy to do where a couple are cohabitating together in a long-term committed relationship and they have intermingled their financial lives.

But there is an increasing emergence of a new type of relationship - those who are 'living apart together'.

Generally speaking 'living apart together' relationships involve a couple who are in a relationship but maintain separate residences. This can be due to particular circumstances, such as working interstate of internationally. But it can also be due to an ongoing commitment to children or grandchildren from a prior relationship - sometimes where their may be concerns to protect wealth or assets from this newer relationship.

There can be an assumption by participants that living together apart will shield wealth or assets held at the beginning of the relationship from the other partner should the relationship breakdown. However there is an increasing amount of litigation which may give pause.

Firstly, the Court has, in several matters, stated that the parties own view of the nature of the relationship is not determinative. For example, in Sinclair & Whittaker (2013) the Full Court of the Family Court said "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. Although their perception of the nature of the relationship is a relevant matter it is not determinative."

Secondly, the Court has directly addressed the issue of 'living apart together'.

In Jonah & White [2011] Judge Murphy said "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." Justice Murphy went on to say "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 seems that the Court will increasingly find itself weighing up the rights of individuals to determine and define their obligations to and for other people against the rights of individuals to be compensation for their investment in a relationship. And as the Court has pointed out searching for a relationship of shared purpose and commitment is a difficult task for "an independent third person ... called upon to make an authoritative determination of events and decide what actually occurred when he or she was not present during the occurrence of those events" Justice Harman in Benedict & Peake [2014]. 

When a child is retained by a parent

From time to time the media report that a child (or children) is missing - retained by one parent, or other family member, from their other parent. Sometimes the whereabouts of the child are known but other times the child will be in hiding.

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

To obtain a recovery order the Court must be convinced that the child ought to be recovered and as such it is necessary to present the Court with details in relation to any existing orders, where the child usually lives, when the child ought to have been returned, 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 the child if a recovery order is not made. Any information as to where the child might be should also be included.

When the whereabouts of the parent who has taken the child are known and that parent participates in Court proceedings the Court can make an order that they return the child at a designated time and place. In some cases the Court will make an order that if they again remove or retain the child that they be arrested.

Should their whereabouts not be known, or should they not participate in proceedings, a recovery order can authorise or direct a person, such as a police officer, to take appropriate action to find, recover and deliver a child to a parent or other carer. In most instances the police will be the Australian Federal Police, but the State police can also be included.

The steps that can be taken include the stoping and searching of any vehicle, vessel or aircraft and the searching of any premises or place in which it is reasonable to believe the child may be.

Generally the police will not recover a child until a parent or carer is close by and able to receive the child.

If the child still can not be found, or if no information is available as to the possible whereabouts of the child, the Court can also make orders to help locate the child - known as a 'location order' or a 'Commonwealth Information order'. A location order requires a person to give the Court information about the child's location while a Commonwealth Information order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child's location.

As a last resort the Court can also make a 'publication order'. This allows the media to publish details and photographs of the missing child and the person they are believed to be with.

End of a long marriage or relationship

Being single after being married for a long time (thirty or forty years) can be liberating for some people but mostly no matter whose decision it was to end the marriage both parties are frightened and uncertain. Suddenly the image of the golden years has changed significantly.

But with some careful planning you can not only survive but thrive. Here's four things to consider to help you on your way:

New family dynamics

Regardless of Court Orders or agreements there's a good chance that family dynamics will be different when the dust all settles.

The shared family home may be sold, or only one party living in it. This can mean that previously shared family occasions such as holidays and get-togethers will need to change.

There is no right way or wrong way for families to behave following separation but it is important to remember this kind of change is inevitable and it will take time to get used to.

Living arrangements

Moving out of the family home is always difficult.

It's important to think about what it will be like to live alone after sharing a house with someone for so many years. It's a big adjustment, but perhaps more so if you feel unsafe or worried about safety and asset protection.

Care giving

A reality of getting older is that some of us need extra help. You may be able to look after yourself fine right now but what about in 10, 15 or 20 years? You may have children or other family who can help care for you.

Or you may need to set aside finances to pay for care expenses when the time comes. It's important to plan ahead so you're prepared for the future.

Finances

Finances are a big deal at any stage of life but particularly so when nearing retirement age. On top of the day-to-day finances such as rent or mortgage, utilities and bank accounts there is social security, superannuation pensions and insurance policies to consider. If you were the one who didn't handle the finances during the marriage just getting an idea of these things can take time.

But if you are to divorce close to retirement age you may not have much time to financially re-establish your self.

Working with professionals who understand the impact of separation on retirement finances will give you the best chance for the years to come.

Interesting research on property divisions by agreement

Last month some research was released by the Australian Institute of Family Studies into just how parties finalise their property settlements - and it looks as though the stereotype that couples fight endlessly over property settlements is not borne out by the data.

The Institute conducted a study involving 9000 separated people from around Australia and found:

The average value of assets being divided was about $261,000.

• 1 in 4 of the couples had no assets to divide
• 1 in 3 had $40,000 or less in assets

Around half of the couples had finalised their property division within a year of separation.

• 4 in 10 of the couples with assets of $500,000 or more took on average two years to finalise their property settlement
• 1 in 3 of the couples with assets of less than $40,000 resolved their property division at the time of separation

According to the co-author of the research, Dr Rae Kaspiew, the majority of couples resolved their property settlement without using the Courts.

Dr Lixia Qu, the co-author of the research, said that about 60% of the couples thought the property settlement was fair. Fairness tended to relate to perceptions about the importance and value given to roles (financial and non-financial) undertaken during the relationship.

Both men and women underestimated their own share of the property division - women reported they received about 50% of the assets while men said they got about 37%.

The most common reason given be respondents for accepting a settlement was wanting to move on. About 33% of those who believed that they had received an unfair settlement saying they agreed to it in order to “get things over with”.

Planning

Whether you were the one who decided to separate or not it is important to establish whether you can actually survive financially after separation. Here are some important financial considerations that you should consider.

From a day to day point of view, you need to ensure you have a bank account and if necessary a credit card in your own name (not a supplementary card). Also your own email address and mobile phone (not linked to your spouse).

The household spending for a couple and two children is actually not that much different to that of a household where there is one adult and two children, even where the children spend time with both parents. Do a budget and start thinking about what your priorities are as far as spending is concerned. An understanding of your spending habits is vital when considering your property settlement.

If children are involved you may receive or pay child support payments. If you are to receive such payments, this may help towards your expenses but it is still important to do a budget as circumstances may change - such as job loss for the paying parent. The Child Support Agency has a useful calculator to work out what you may receive/pay. It is important to remember that child support generally only applies to children under the age of 18 so if you have adult children living in your home it is unlikely you will receive any child support payments for them.

Government payments or subsidies may be available.  To be eligible you must satisfy Centrelink’s merit, income and asset tests but with some smart financial planning strategies you can maximise the amounts you do receive.

While considering day to day expenses is important you also need to think about long term planning and in particular setting yourself up for retirement.  Obtaining good financial planning advice goes a long way to financially recovering from separation. Such advice should be obtained prior to finalising your property settlement - so that it can be best structured for long term planning.

You should review your wills, enduring powers of attorney, insurance and your superannuation to ensure you update your beneficiaries. 

Family Law Council report on "parentage"

Recently the Family Law Council of Australia's "Report on Parentage and the Family Law Act" was released by the Attorney-General. The Council was asked to prepare the Report in light of the increasing diversity of family formation in Australia and the rapidly changing nature of reproductive technology.

In the Report the Council considers the role and meaning of "parent", who is considered to be a parent of a child under the Family Law Act, and the inconsistent, inappropriate and discriminatory outcomes for children on the basis of the status of the people who are raising them.

The Council made nineteen recommendations (summarized):

• One: The Government should conduct a comprehensive revision of the decision making provisions of the Family Law Act to ensure that it provides a consistent approach to decision making for all children regardless of their family form.
• Two: The reference to ‘both’ of the child’s parents should be removed from s 60B(1) and s 60CC(2)(a) of the Family Law Act. In addition, where the word ‘parent’ appears elsewhere it should be amended to include a reference to ‘other significant adults’ or ‘other people of significance to the child’ where appropriate.
• Three: The definition of parent in s 4 of the Family Law Act should be amended to make it clear that the term parent is inclusive and not limited to parents recognised under the law.
• Four: In determining the best interests of an Aboriginal child, s 60CC(3)(h) of the Family Law Act should be amended to include ‘the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the benefit to that child to enjoy that culture with other people who have the responsibility to pass on that culture).’
• Five: Part VII of the Family Law Act should make specific provision for the making of orders in favour of one person or more than two persons where that supports the child’s best interests.
• Six: The 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.
• Seven: The Standing Council on Law and Justice should consider further state, territory and Commonwealth cooperation on harmonising parentage laws nationally.
• Eight: Section 60H of the Family Law Act (artificial conception procedures) be consistent in its approach to single and couple parents and with state and territory laws in this area that make provision about the parental status of donors of genetic material.
• Nine: Section 69U of the Family Law Act be amended to make it clear that the presumptions can be rebutted by other provisions in Part VII Family Law Act.
• Ten: The Government should seek a referral of power from South Australia consistent with the referrals from New South Wales, Queensland, Tasmania and Victoria which provide that the family courts may make a determination of parentage.
• Eleven: The Government should consider amending s 69W of the Family Law Act to make it clear that the court may consider the best interests of the child when deciding whether to make a parentage testing order.
• Twelve: The new federal Status of Children Act (Recommendation 7) should contain provisions specifically dealing with applications for 'transfer of parentage' in surrogacy cases where state and territory Acts do not apply.
• Thirteen: The provisions in the new federal Status of Children Act dealing with the transfer of parentage in surrogacy cases where state and territory Acts do not apply should contain a set of minimum requirements including the following:
• That any order is subject to the best interests of the child;
• Provision is made for when the parties change their minds;
• Evidence of the surrogate mother’s full and prior informed consent;
• Evidence of the surrogacy agreement, including any sums paid;
• Consideration should be given to whether the intending parents have acted in good faith in relation to the surrogate mother;
• Evidence of the intending parent/s actions in relation to ensuring the child will have access to information concerning the child’s genetic, gestational and cultural origins;
• Provision is made that where a surrogacy arrangement involves multiple births, orders must be made in relation to all children born;
• The legality of the surrogacy arrangement should be a relevant consideration for the court when determining parentage.

• Fourteen: Section 60H of the Family Law Act (artificial conception procedures) should be amended so that it is clear it does not apply to surrogacy arrangements.
• Fifteen: Section 60HB of the Family Law Act should be retained (in some form) to recognise state and territory orders that transfer parentage in domestic surrogacy arrangements.
• Sixteen: The Government should pass amendments to:
• Clarify whether the court has power to authorise the taking of a sample from a child without the consent of a parent.
• Amend s 69ZC of the Family Law Act to make it clear that a non-compliant parentage testing report may be admitted into evidence if the court is satisfied it should be.

• Seventeen: The Australian Law Reform Commission conduct an inquiry into the full range of issues raised by international surrogacy and its impact on Commonwealth laws.
• Eighteen: The Government should pass separate legislation to enable the family courts to transfer parental status to Torres Strait Islander receiving parents.
• Nineteen: Birth registration be reviewed and that consideration be given to harmonisation of records so that one search can track births (deaths and marriages) in all states and territories.

The Report can be found at www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Pages/FamilyLawCouncilpublishedreports.aspx.

Tax ruling change - potential significant impact on property settlements

At end of financial year the Australian Tax Office issued a final public ruling that provides that payments from a private company to a spouse in accordance with a Family Law Courts order are now to be treated as a deemed dividend and subject to personal income tax. Previously these payments, per earlier practice and many private rulings from the ATO, were treated as tax free payments to the spouse receiving the money.

This is a considerable policy change impacting on those couples whose property includes family companies. Indeed the ruling from the ATO notes a reversal of a "significant body" of previous private rulings and a general practice.

Additionally, it is arguably contrary to other tax breaks that are available for separating couples, such as stamp duty exemptions and capital gains tax rollover relief.

Business advisers have been quoted in news articles (such as in the Australian newspaper and the Australian Financial Review last week) as saying that the change could mean that people are unable to retain their businesses as they are required to come up with more money to make up the difference to their former spouse and to do so they will have to sell the business.

Whether that will occur or not will depend on the circumstances of each case but what is going to occur is that parties to family law proceedings will need to carefully consider whether non-company assets should be divided in a different manner in order to achieve a better tax outcome. But there are some matters where almost all of the assets that the parties "own" are held by a company and such an option will not be available. In those cases, accountants will need to determine the tax implications and costs of splitting the assets so parties know what the net outcomes will be.

If there is extra tax payable it will need to be taken into account when determining a just and equitable outcome between the parties with the result that the parties are dividing less than they previously would have been.

In some circumstances, where a spouse does wish to retain the company and its assets, it is also possible that company restructures will be necessary resulting in complex tax arrangements being undone in order to try and achieve an equitable result.

Some commentators are calling for government intervention - legislation to overturn the ATO's ruling. It will be interesting to see if the government responds. 

Annual conference

This past week I, along with two colleagues, attended the annual Hunter Valley Family Law Practitioners Association conference.

This conference is the highlight of the conference calendar in my opinion. Firstly, while there may be conferences in more glamorous climes the Hunter Valley Vineyards region is not too bad a location for a conference - there's is something wonderful about waking up to the sight of hot air balloons rising over the vines and the event wraps up on Saturday afternoon, leaving plenty of time for wine tasting and picnics. But most importantly, the conference is without comparison in terms of an opportunity to discuss that thing we all do - family law - with our Judges, experts and fellow practitioners in a relaxed environment.

This year, as always, the speakers and topics were excellent.

We had a session presented by a visiting Justice entitled "Children in the Family Law Courts - Are They Seen and Not Heard?"; one by our local expert on the taxation consequences for parties to proceedings and consideration of whether there is a more effective option available; one by one of our local Justice's on 'Relocation' Cases; another by one of the experts regularly used by the Court on parenting matters entitled "Parental Mental Health Issues - Impact on Development and Attachment, Parenting Arrangements and Developmental Stage"; a session on the often complex ethics involved in family law matters; one by one of our local experts on self-managed superannuation funds; one by a local Magistrate entitled "AVOs -  Practical Aspects of the Crimes (Domestic and Personal Violence) Act 2007"; and a review of the latest and greatest by our local Judges and one of the visiting Judges. 

What Court and when?

The Australian court system is intricate. This is in large part due to our Constitution and the allocation of powers and responsibilities in relation to various matters between the Federal government and the State governments.

One clear example is in family law.

There are several courts - at both state and federal level - that deal with issues concerning families. Each court has jurisdiction to deal with specific types of cases, although there are several areas which overlap and certain matters could very well be heard in any number of courts.

For example, at a federal level, there is the Family Court of Australia and the Federal Circuit Court of Australia. Both courts have jurisdiction to consider property division and/or parenting disputes between separating married or de facto couples. Generally speaking the Family Court will consider the more specialised or complex types of matters. However, in New South Wales, the Local Court, District Court and Supreme Court also have jurisdiction to make orders under the Family Law Act in relation to property division. There are limitations on the orders that these courts can make - for example the Local Court and District Court can only consider property division cases that involve an asset pool under a certain amount ($100,000 in the Local Court and $100,000-$750,000 in the District Court). Additionally, the NSW Children's Court can make orders for the care and protection of children who are at risk of harm.

However, family law matters also provide another example where the respective jurisdictions of the federal courts and the state courts are further entwined. That is, where the same facts could result in different applications being made in either a federal court or a state court.

In yesterday's Sydney Morning Herald there was an article on this example of how the two jurisdictions interrelate.

In May of this year an order was made by the Supreme Court of New South Wales, upon an application made by a soon-to-be former mother-in-law (Ms McDonald), for the son-in-law (Mr Street) to pay her $540,729.92 plus interest and costs. Last month a garnishee order was made directing all of Mr Street's income to be paid to Ms McDonald in repayment of that debt.

It is understandable that Ms McDonald commenced her claim in that Court. Ms McDonald was claiming that she had loaned Mr Street monies when he was struggling to pay his mortgage and that Mr Street had failed to repay her those monies. That is, that Mr Street had breached a contract between himself and Ms McDonald. Ms McDonald was relying on the Supreme Court's common law civil jurisdiction.

Mr Street however has now sought an adjournment of the garnishee order to enable him to seek that the matter be transferred to the Family Court.

The ability of the Family Court to consider the matter is based on the breakdown in the marriage between Mr Street and Mrs Street, Ms McDonald's daughter. The Family Court, in exercising its jurisdiction to make property division orders between Mr and Mrs Street has jurisdiction to hear from third party creditors of the marriage, such as Ms McDonald.

The matters which the Family Court will consider in determining whether Ms McDonald is a third-party creditor of the marriage and therefore owed money from the matrimonial asset pool may be vastly different from those matters that the Supreme Court will have considered in determining a breach of contract matter. 

The importance of procedural fairness

In a recent appeal the Family Court spoke about the fundamental importance of procedural fairness to the law and more broadly to the community.

The case of Manotis & Manotis and Others [2014] was an appeal from a decision by Justice Moncrieff.

The husband appealed the decision of Justice Moncrieff, relying in part on an argument that he had not been provided with procedural fairness by the Judge.

The Appeal Court acknowledged the frustration that Justice Moncrieff "understandably felt in dealing with the dispute which remained unresolved nearly 5 years after the substantive orders had been made. We acknowledge also the difficulty associated with the husband seeking to rely upon an affidavit, which although not of great length, attached a very large number of documents, many of which were seemingly of little or no relevance. We also accept that the affidavit contained much objectionable material. Finally we accept that His Honour was entitled to entertain suspicions about the Deed of Settlement."

The Appeal Court went on to say "notwithstanding all of this, His Honour's obligation was to determine the issue according to law and to afford procedural fairness. With great respect, we consider the transcript reveals that His Honour approached the matter having predetermined the outcome; acted as prosecutor on behalf of the solicitors and failed to afford a proper opportunity to any of the parties to present their case."

The Appeal Court upheld the husband's appeal. 

The Appeal Court concluded by addressing the importance of procedural fairness.

The Court said: "it is important to keep in mind that the process followed in every case not only has an impact on the litigants in that case but it also has wider ramifications." The Appeal Court quoted from the decision of NAAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] where Justice Kirby said: "if the law requires a particular course to be followed, the failure to observe proper procedures itself amounts to a legal defect in the performance of the task conferred by law as the law requires. In this sense, the invalidating element is not the disappointment but the anterior failure to conform to the law. That failure is, in a sense, a legal wrong against the whole community."

The Court also quoted from Justice Rich in Cameron v Cole [1944]: "it is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside."

The Appeal Court concluded "the hearing in the present manner was attended by such procedural unfairness that the only proper order was to discharge all of the orders."

'Special contributions' concept "a terrible mistake"

Earlier in the year I wrote a post on the case of Kane & Kane, a big money property division case that made the headlines when the adjustment that had been made in favour of the husband for "special contributions" by the trial judge was overturned by the Appeal Court: http://lawyerfamily.blogspot.com.au/2014/01/special-contributions.html. Now another "special contribution" case has wound its way through the appeals process: Hoffman & Hoffman 2014 FamCAFC 92.

On 11 January 2013 Federal Magistrate Brewster made property division orders between Mr and Mrs Hoffman in relation to their 36 year marriage. His Honour divided the property and superannuation of about $10,000,000 between the parties equally.

Mr Hoffman appealed those Orders.

Mr Hoffman, who represented himself at the Appeal, argued that the Federal Magistrate erred in law by failing to have regard to his "special contributions" to the marriage or alternatively that the Federal Magistrate failed to place sufficient weight on his "special contributions".

In the first instance decision Federal Magistrate Brewster found that there was "nothing unusual about the parties contributions during their relationship. They commenced their relationship a long time ago. Each brought property into the relationship.… The difference in the values of these properties is no longer relevant. During a long marriage they each earned income.… The parties raised four children."

His Honour then went on to say "where the court is dealing with a situation where there is a long marriage with children and where the parties have made contributions in different spheres it is usually inappropriate to give greater weight to one party's contribution than those of the other…. There have been exceptions to this approach however. These have been in what have been called "big money" cases. In cases in the past where the parties have acquired a very substantial fortune and this has been due to the particular skills of the husband (in all the cases of which I'm aware it has been the husband) then adjustment has sometimes been made to reflect what is often termed the "special contribution" he has made."

Mr Hoffman had argued that the couple's asset should be split 70:30 in his favour in recognition of his "skill" and "entrepreneurial flair"- in particular in relation to selecting, maintaining and trading shares.

His Honour rejected the husband's assertion that he should be given an adjustment based upon his "special contributions".

Indeed the Judge went on to say that "… I do not accept the principal (if it be a principle) of special contributions". His Honour reviewed the decision of the High Court in Mallet v Mallet [1984] and said that the decision "need not and should not be followed" as the decision is "infected by gender bias" and "the zeitgeist in 1984 when Mallet was decided was vastly different to the zeitgeist today".

The Appeal Court (constituted by Deputy Chief Justice John Faulks, Justice Peter Murphy and Justice Garry Watts) said "to the extent that His Honour's judgement is to the effect that there is no binding rule of law relating to "special contributions" His Honour is, in our view, correct." The Appeal Court went on to say "we do not consider that there is any "legitimate guideline" of "special contributions" or any such guideline pertaining to particular contributions containing "special" factors or features…"

Indeed the Appeal Court said "we consider that the true position is, with respect, put correctly and succinctly by Justice O'Ryan in D & D [2005]: "… 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."

The Appeal Court dismissed the husband's appeal and ordered that he pay the costs of the wife for the appeal.

Child Support Inquiry

On 27 March 2014 the Minister for Social Services asked the Standing Committee on Social Policy and Legal Affairs to inquire into and report on Child Support.

The Committee is to look into:

• the methods used by Child Support to collect payments in arrears and manage overpayments;
• whether the child support system is flexible enough to accommodate the changing circumstances of families;
• the alignment of the child support and family assistance frameworks;
• linkages between Family Court decisions and Child Support's policies and processes; and
• how the scheme could provide better outcomes for high conflict families.

The Committee is to also report on:

• the methodology for calculating payments and the adequacy of current compliance and enforcement powers for the management of child support payments;
• the effectiveness of mediation and counselling arrangements as part of family assistance frameworks; and
• ensuring that children in high conflict families are best provided for under the child support scheme.

The Committee called for submissions - due to be filed by 4 July 2014. And a variety of organisations - including Relationships Australia, the Law Society of NSW, Victorian Legal Aid, the Law Council of Australia, Dads in Distress and the National Council of Single Mothers and their Children - have made public submissions to the Committee.

Additionally, the Committee has created an online questionnaire for individuals to complete: https://www.research.net/s/CSPquestionnaire.  According to the Chair of the Committee, MP George Christensen "We want to hear from individuals about their experiences, and that is why we have created a comprehensive online questionnaire ... This kind of information will be crucial to our understanding of how the program operates in reality".

The Committee has also been holding hearings in many Australian cities, including an up-coming one in Newcastle on 21 July 2014. These hearings are open to the public.

The Committee is expected to table its report in early 2015.

Falling Through the Cracks

Last week was a little shorter work week as I attended the Newcastle Family Law Pathway Network (FLPN) annual conference.

This year the conference was entitled "Falling Through the Cracks" and was on the very important juncture between Family Law, the Children's Court and Child Protective Services. 

The conference was very well attended - bringing together legal practitioners, counsellors, and representatives from a large variety of government and non-government services. 

And we were honoured by speakers including Judges from the Family Court of Australia and the Federal Circuit Court as well as an Independent Children's Lawyer, the assisting director of the Department of Family and Community Services as well as representatives of the local counselling and mediation providers. 

One of the main topics for consideration was how to share information between the various organisations - for example, if a child comes before the Family Law Court's how best (and most efficiently) can information that the Department (perhaps better known as DOCS) might have be given to the Court. This may seem like a simple issue when faced with such serious issues but there are very complicated matters such as privacy to be taken into account. For example, how can the details of a mandatory reporter (such as a doctor, teacher etc) be kept private to protect their safety (threats of harm are made towards mandatory reports unfortunately) - how can the Department's resources handle this further review work? 

Having senior representatives from the Court and the Department at the conference was a chance to discuss the competing issues and brain-storm genuine ideas to help resolve these matters. 

What I found most inspiring from the conference was the passion and dedication that each of the speakers have for family law and for trying to do the very best they can to help the people - in particular the children - who they work for and with. 

* The FLPN supports a coordinated family law service system in the Newcastle area. It provides information sharing and networking events such as the annual conference as well as referral information for government and non-government services.  

Relocation - thought process

Last year I wrote a post about the legal aspects of relocation after separation: http://lawyerfamily.blogspot.com.au/2013/09/relocation-other-side-of-town-or-other.html. Today I thought I would write about how you might go about the relocation process.

During a separation the possibility of moving you and your children away can be very tempting - maybe it's practicalities, such as a new job in a new city, or simply the thought of a fresh start. But given the complexities associated with the legal process of resolving contentious relocation matters it is important that any decision to relocate is considered and well thought out.

Firstly, have a plan. And think it all the way through. Where will you live? What school will the children attend? Is it as good as their current school? Are there the same extra curricular activities? Who will help you care for the kids? Do you have friends or family in the area who will be a support network to you and the children? If the kids have any medical issues are the same or better facilities available to help them? Do you have a job lined up or job prospects? These are just some of the questions you should ask yourself - and they are also the questions a Court will want answers to in considering an application for relocation.

Secondly, is the move beneficial to your children? And this isn't just about the amount of time they will spend with their other parent - although that is obviously a vital consideration. Think about their support system - their extended family, school, friends, extra curricular activities. Is it the best timing for them - should it be done at the conclusion of the school term or year - or before primary school starts or before high school starts? While the move may seem like a wonderful opportunity to you, it may be devastating to your children. You may wish to think about counselling for them to help them through this change.

Finally, communicate with your children's other parent. Think in advance of what their concerns might be - usually, when will they spend time with the kids and how. Think of extra options like skype or more time during holidays but also think of how you will organise the travel between the two homes. If the two of you are not able to talk you may want to consult a mediator to facilitate the conversation or ultimately a solicitor to put this information to the other parent.

Hopefully this process will mean that the two of you are able to reach agreement in relation to relocation and avoid the Court process.

How to: Instructions

Family law matters are by their very nature invasive. You will be asked to lay bare many aspects of your life - initially to your solicitor, but then to the solicitor representing your ex and ultimately maybe even in an open Court room before a Judge.

Taking instructions about the history of the matter and writing Court Affidavits are things I do on a near daily basis but I appreciate that they are not things my client's are used to doing so I thought I would prepare this little guide to keep in mind:

1: Keep calm

When we meet to get your instructions I am not there to grill you. It is not a memory test - you won't be punished if you can't remember the exact day you purchased your first house together or the name of your child's Year 2 teacher.

We will work together to try and get as many of your memories out as we can and we will then go from there.

2. Speak up

Sometimes clients think the answer is too complicated or doesn't "fit" in with their case. But it is far more important that you speak up and provide an answer.

Also, if the question your solicitor asks is confusing and you are not sure what information they are after - ask for them to ask it again or explain the question.

3. Tell the truth

The truth isn't always pretty but nonetheless it is vital that you tell us the truth.

If there is something you need to tell me but you are worried about how it will effect your case - tell me. It is my job to provide you with advice as to the use that will be made of that information and the best way to present that information and any explanations about it.

The world's largest property settlement?

Ah, those Russians.

If you saw the news last week you may have seen a story or two about this case.

Dmitry Rybolovlev and Elena Rybolovlev's property settlement has been finalised by a Swiss Court - and the sums involved are staggering.

According to the media reports Mr and Mrs Rybolovlev met as university students in Perm, Russia and married in 1987. Mr Rybolovlev trained as a doctor but made his fortune by developing the potash company Uralkali and transforming it into one of the world's biggest fertiliser producers. Mr Rybolovlev sold his controlling interest in Uralkali for a reported $6,500,000,000.

The couple separated in 2008 and have been contesting their property division in the Swiss courts ever since.

While the Court earlier froze their assets, apparently the proceedings did not stifle Mr Rybolovlev's spending/investing. According to media reports trusts in the name of their eldest daughter, Ekaterina, have purchased items including a 66% share in the Monaco Football Club (which last year spent £146,000,000 on player signings), Skorpios - the private Greek island previously owned by Aristotle Onassis - for $150,000,000, Donald Trump's former mansion in Palm Beach and an US$88,000,000 penthouse apartment in New York. Mr Rybolovlev also apparently has a 9.7% stake in the Bank of Cyprus and lived in a $300,000,000 penthouse in Monaco.

The Court ordered that Mrs Rybolevlev receive $4,500,000,000 - almost half of the couples net worth. The ruling includes ownership of two homes in Cologny, Geneva, a property in Gstaad, and items of art, antique furniture and jewellery.

While Mrs Rybolovlev's lawyer said that the result was "a complete victory" apparently there may be a problem getting the cash portion of the judgement as much of the couple's assets were transferred to Cyprus in 2005 and there are questions surrounding the Swiss Courts ability to order the transfer of funds. 

Indications are that the decision is going to be appealed by Mr Rybolovlev.

Whether it's the largest property settlement or not is debatable - so many property settlements are by their nature private matters not reported on in the media. But this one has to be right up there towards the top.

Use of family law court documents by the ATO

In 2009 the Australian Taxation Office (ATO) commenced an investigation into the activities of a man given the pseudonym of Mr Darling. At that time Mr and Mrs Darling were involved in litigation before the Family Court in relation to their property division dispute.

In December 2010 Mr and Mrs Darling consented to their property division matter being dismissed by the Court without resolution. However, prior to the dismissal of proceedings various documents had been filed with the Court by both parties and the ATO had (without the knowledge of the parties) sought and been given access to the Court file. 

On 3 July 2012 the ATO Commissioner sought an Order that the Commissioner of Taxation by released from the implied obligation not to make use of documents filed in the proceedings for purposes other than those of the proceedings, and to make use of the documents for the administration of the Income Tax Act 1936 and/or the Taxation Administration Act 1953 in relation to Mr Darling and his related entities in respect of the income years ending 30 June 1991 to 30 June 2010 and the determination of any objections to assessments of tax, penalties or interest issued in respect of those tax years.

In March 2013 the ATO's application was rejected by the Court.

The Court held that the Commissioner remained under an implied obligation not to make use of the documents for a purpose not related to the family law litigation.

The Judge said the purpose of the implied obligation was “to preserve the parties’ privacy and to encourage full and frank disclosure”, both of which concepts were “of particular importance and sensitivity in relation to proceedings in this court”.

Her Honour noted that a person may be released from the implied obligation if there are “special circumstances” but that there was "very real force in the submission made on behalf of the husband that the Commissioner has not specified the purpose for which the documents are required and on that basis I could not be satisfied that there [are] “special circumstances” nor whether the release from that obligation is necessary and in the public interest to enable the Commissioner to fulfil his statutory function."

The ATO appealed that decision. Which brings us to the case of the Commissioner of Taxation and Darling [2014] FamCAFC 59.

On appeal the ATO's application succeeded.

The Court held that "In our view the most important consideration is whether or not granting the Commissioner relief from the obligation is likely to discourage litigants from making a frank disclosure. There is already a heavy obligation on litigants in Family Court proceedings to make such a disclosure, and they are required to provide a written undertaking to the court that they have done so. Most importantly, it is vital to recognise that there is already a disincentive to litigants to be frank with the Family Court about tax evasion because it is (or should be) well-known that the Court can and does refer such matters to the authorities for investigation."

The Full Court concluded that while there is a range of competing considerations discretion should be exercised in favour of the Commissioner having use of the documents for the following reasons including:

1.      The Commissioner is performing an important public duty. The public interest is advanced by ensuring all taxpayers pay their fair share of tax.

2.      The Commissioner is engaged in a substantial, targeted audit. It is not a “random audit”.

3.      Although many of the annexures to the affidavits may be available to the Commissioner from other sources, the parties’ own assertions about the history of acquisition of assets would be available only to the Commissioner by interview with the parties in which they may have an incentive not to be frank.

4.      There are restrictions on the way in which the Commissioner can use the information obtained from the court file which would ensure that the documents do not venture into the public arena, thus ensuring there is no breach of section 121 of the Family Law Act.

5.      The affidavits and financial statements were sworn by the parties for the purposes of the proceedings and therefore in the expectation that they might be read in open court.

6.      Albeit brief, and expressed in general terms, the officer of the ATO sufficiently stated the purpose for which the documents were required.

Despite success in this case it does not necessarily correspond that there will be a flood of applications by the ATO to make use of family court documents. According to an article in the Sydney Morning Herald by Michaela Whitbourn, a spokesman for the ATO said it did not expect an increase in the number of cases in which the Commissioner sought access to Family Court documents.

What is a de facto relationship?

Usually when people come to me for advice about property division, and they aren't married, they acknowledge or assume that they were in a de facto relationship. But occasionally a matter comes along where careful consideration has to be given as to the legal nature of a relationship. 

The Family Law Courts have power to make orders in relation to property division between people who are or were married and those who are or were in a de facto relationship - outside of those circumstances the Court does not have power to makes orders.  It is therefore paramount, if there is any question as to the legal definition of a relationship that you carefully consider the definition of a de facto relationship. 

Section 4AA of the Family Law Act provides the definition of a de facto relationships. 

According to that section a person is in a de facto relationship if:

• the persons are not legally married to each other; and
• the persons are not related by family; and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

It is important to note that a person can be in a de facto relationship while married to another person or while in a de facto relationship with another person. 

Section 4AA goes on to say that the circumstances of the relationship may include:

• the duration of the relationship;
• the nature and extent of their common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their property;
• the degree of mutual commitment to a shared life;
• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• the care and support of children; and
• the reputation and public aspects of the relationship.

International child abduction

You may remember the sad case involving four sisters – the “Italian case” as it was sometimes referred to in the media.

The case involved a dispute between the parents as to whether their children should live in Italy (where they were born, where they had lived throughout their young lives and where the father was from) or Australia (where the mother was from). The mother had removed the children from Italy to Australia, where she wished for them to remain, without the consent of the father and the father wished for the children to be returned to Italy. The proceedings before the Court involved an application for the children to be returned to Italy – not to determine how much time they should spend with either parent.

Cases such as this – where a child has been removed from one country to another – involve complex issues above and beyond standard family law considerations.

The Hague Convention on the Civil Aspects of International Child Abduction is an international agreement which provides for children abducted or retained in another country to be returned to their former country of residence.

An application under the Convention - made by the Central Authority from each country, not by the parent themselves - can only be made to or from a country that has signed the Convention. 

Australia is a signatory to the Convention. As are 91 other countries:

Albania, Argentina, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Canada, Chile, China, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Republic of Korea, Latvia, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Monaco, Montenegro, Morocco, Netherlands, New Zealand, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Russia, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Macedonia, Turkey, Ukraine, UK and Northern Ireland, USA, Uruguay, and Venezuela.

Japan is the most recent addition to that list – it only joined on 1 April 2014.

Australia also has bilateral agreements with two other countries: Egypt and Lebanon. The Federal Government will provide assistance to families affected by abduction to those two counties.

Cases involving the Convention are obviously highly emotional and difficult cases – but the Convention’s role is to provide some framework for the dispute and reflects an agreement amongst 92 countries that the “home” country is the correct forum for the dispute to be resolved in.

In cases involving countries that are not signatories to the dispute parties find themselves at the mercy of the laws of the country that the children have been taken to.

Who pays birth expenses?

Almost hidden amongst the 698 sections of the Family Law Act are six little used sections on the father’s liability to contribute towards the child bearing expenses (including wages and medical expenses) if he is not married to the mother of the child.

I say little used as in a database search I could only find 3 reported cases that dealt with the issue at all – and none on this issue specifically.

However, a recent case from the Federal Circuit Court has served as a reminder of the potential of this small part of the Act. The case is Abrahams and Simm [2014].

In that matter the mother made an application to the Court for “childbirth maintenance” in relation to a child who was born in 2012.  The parties separated prior to the birth of the child.

The mother sought a total of $27,061, being $15,610 for maintenance for her and $11,451 being medical expenses in relation to the pregnancy and birth. The mother submitted that she had properly identified and particularised the costs associated with the pregnancy and birth of the child. She further submitted that the costs and expenses claimed were reasonable in all the circumstances.

The father acknowledged that he was the father of the child and proposed that he pay the mother the sum of $7,000. The father also sought that the mother pay his legal costs for the matter. The father submitted that the mother’s evidence was lacking in justifying all of the items claimed (e.g. there were no pay slips), not all of the items claimed were reasonable, his uncommitted income did not enable him to pay and he should be responsible for half of the expenses properly assessed not the whole amount.  The father also claimed that the mother’s entitled to the “Baby Bonus” should be factored in.

The Court ordered that the father pay the mother the sum of $14,000.

The Court found that a number of the medical expenses claimed by the mother were not reasonable, including a “doula” and a “settling swing”. Additionally, the Court agreed with the father that he should not have to pay for the total of the expenses – only half. The Court rejected the father’s claim that the mother’s entitlement to government benefits, including the “Baby Bonus” should be taken into account. This is in line with section 67C of the Family Law Act which expressly states that the Court must disregard any such entitlement.   

It will be interesting to see if more cases appear relying on these sections.

 

Of note, there is also scant cases on obligations to pay child birth expenses for people who are married and separated (which are covered by other parts of the Family Law Act).

The views of a child

The Family Law Act provides that the views of a child can be considered in determining what arrangements are in their best interest following the separation of that child’s parents.

The Courts most often obtain the views of a child with the assistance of an expert counsellor who will meet with the child in an environment far less stilted and foreign than a courtroom and talk to the child about their relationship with both parents and any other concerns they may have about future arrangements. That counsellor then prepares a report for the Court.

A child won’t be required to give evidence in a courtroom. This is due in great part to a concern as to the psychological harm it would do a child to have to sit in front of both parents and state a preference between the two of them. But it is also done this way – through the help of experts – precisely because the counsellor’s are experts – they have the skills to ask trick questions and listen for an answer that may be hidden.

Time and again the view provided by a child to a Court counsellor will be a shock. Not necessarily to the Judge, or even the lawyers, but to the parents themselves.

This shock is somewhat an understandable reaction to a very stressful and emotional situation - by the time a matter has reached final hearing parents are usually entrenched in their dispute. They have formed a firm view on why they are right and why the other parent is wrong.

But central to family law litigation is a child. A child who may have been expressing their view all along.

In a case from late last year, Delahunty & French, the Court went so far as to rebuke both parents for their lack of focus on their child.

In that case, the Court appointed expert, known as Mr P, became aware of a story that the child had written at school. The Court noted that while this piece of writing may not have concerned the teacher or the school, it was certainly of concern to Mr P.

The heading of the document was “children should have a say.” The child wrote that adults buy and build houses and children should at least get an opportunity to decide where they lived and who they wanted to live with.

In delivering judgment the Court noted that much of the evidence was about the parents “even though they may not have seen it that way”. The Judge noted that the child had witnessed many very bitter exchanges between her parents, including on one occasion when the police were called to her school assembly and following one such incident the Court noted "the parties had a dispute about what had happened in emails thereafter and again. it had nothing to with the child."

So how can you spot the views of a child during a dispute without it ever getting to the point that the parties in Delahunty & French did?

I think some clues can be found in the phrases I have seen repeated time and again over the years:

• “Please stop talking badly about each other in front of me. Even though you hate them they are still my parent. It makes me feel bad when you talk about them like that.”
• “Please don’t talk about me as if I need to be managed. If I hear that you would rather go away with the girls on “your weekend” I feel like you don’t want me.”
• “Stop telling me I’m being dramatic. I’m just sad/scared/hurt/frustrated/ disappointed/angry/depressed about what is happening.”
• “When all you talk about is who is getting the house or the car or the fridge I think that all you care about is stuff and not me.”
• “Please don’t throw away a gift I receive from them. It makes me feel like I can’t share happy things with you.”
• “Your new “friend” is not my friend. Sometimes I want to spend time with just you.”
• “Please get on the same page! When you let me get away with stuff just because you want to be fun I get yelled at when I go back. I’m confused.”
• “It’s okay if I do something with them and not you. It’s just because they are better at it/that’s when it was on. I don’t love them more.”
• “You’re supposed to protect me from bullies, now you’re just being one.”
• “Stop acting like a child. Can’t you both find a way to be at my party/sports carnival/concert/game?”
• “Stop saying “I’m just like …” when I do something bad. It hurts me because I know you don’t like them and then I think you don’t like me.