Amendments to the Family Law Act: The best interest principles and equal shared parental responsibility
Recently, the Australian Parliament has passed two pieces of legislation amending the Family Law Act 1975 (Cth).
This legislation was introduced with the aim of making the Australian family law system “simpler, safer and more accessible for separating families and their children”.
These amendments are to apply in relation to all proceedings after commencement, as well as proceedings already in the court-system but not subject to final order.
Family Law Amendment Act 2023
The Family Law Amendment Act 2023 was passed on 19 October 2023 and received assent on 6 November 2023.
Most of the changes to the law will apply from 6 May 2024, unless an earlier date is otherwise fixed by Proclamation.
Its purpose is to ensure that the best interests of the children of separating families are prioritised in the family law system.
Several changes will be made to the current Family Law Act 1975 (Cth).
This article briefly discusses the changes to be made in relation to the best interest factors and the repeal of the presumption of equal shared parental responsibility.
Other key amendments include:
The requirement for the Independent Children’s Lawyer to meet directly with the children;
Greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation;
A definition of ‘member of the family’ that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
Simplified compliance and enforcement provisions for child-related orders;
Powers to enable government to regulate family report writers;
Ensuring that children’s voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.
Changes to the best interest principles
The current factors outlined under s 60CC, also referred to as the primary and additional considerations of the Court when determining parenting arrangements in the child’s best interest, were critiqued in the Australian Law Reform Commission Report Family Law for the Future: An Inquiry into the Family Law System: Final Report.
The ALRC Report stated that amendments were necessary to simplify, clarify and improve how the best interests of the children are considered in parenting matters.
The amendments see the abolishment of the primary and additional considerations.
Instead, the amendments introduce six general considerations, and two further considerations for Aboriginal or Torres Strait Islander children.
Under the reforms, the Court must consider the following when determining what is in the children’s best interests:
What arrangements would best promote the safety (including safety from family violence, abuse, neglect, or other harm) of
The child; and
Each person who has parental responsibility for the child;
Any views expressed by the child
The developmental, psychological and emotional needs of the child;
The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring;
The benefit to the child of being able to maintain a relationship with both of the child’s parents, and other people who are significant to the child, where it is safe to do so;
Anything else that is relevant to the particular circumstances of the child.
If the child is Aboriginal or Torres Strait Islander, the Court must look at two additional considerations. Namely, the Court must consider:
The child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the opportunity to connect with, and maintain their connection with, their family, community, culture, country and language;
The likely impact any proposed parenting order under this Part will have on that right.
Despite the changes, the Court retains their wide-ranging discretion to determine what parenting arrangements are in the child’s best interest.
Equal Shared Parental Responsibility
Currently, s 61DA of the Family Law Act 1975 (Cth) provides that when making a parenting order in relation to a child, the Court must apply a presumption that is in the child’s best interest for the parents to have equal shared parental responsibility for the child.
Section 65DAA, as it currently stands, requires the court to consider a child spending equal time, or substantial and significant time, with each parent when an order of equal shared parental responsibility is made.
This presumption, and consideration of equal or substantial and significant time, have been controversial since their inception.
The Explanatory Memorandum to the Family Law Amendment Bill 2023 outlines that recent inquiries into the family law system have found that the presumption of equal shared parental responsibility is commonly misunderstood as creating a right to equal shared time with children. This has never been the case and has led to inappropriate arrangements for children and increased parental conflict.
Given this, the presumption has been repealed. Under the reforms, there will be no presumption of equal shared parental responsibility.
Parenting arrangements will be based solely on what is in the best interest of the child.
The Court may make orders providing for joint or sole decision making about major-long terms decisions.
The Court may also find that it is in the children’s best interest that one parent has sole decision making in relation to a particular major-long term decision, but both parents have joint decision making in relation to the others.
The Court will still be required to consider the allocation of parental responsibility, and responsibility for decision-making about major long-term issues, when raised by the parties.
Essentially, the wording of the Act has been clarified to avoid conflating the term ‘equal shared parental responsibility’ with equal time.
Family Law Amendment (Information Sharing) Act 2023
The Family Law Amendment (Information Sharing) Act 2023 was passed on 19 October 2023 and received assent on 6 November 2023.
The purpose of the Family Law Amendment (Information Sharing) Bill 2023 is to ensure the courts have access to the full picture of family safety risk in order to prioritise the safety of children and families, particularly in circumstances where there is a risk of child abuse, neglect or family violence.
The main amendments to the Family Law Act introduced by this Act are the following:
Establishment of two new information sharing orders to allow courts to quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect that may place children at risk;
Allowing a court to make these orders at any time during proceedings so information is accurate and up-to-date, and
Ensuring sensitive information is only disclosed in a safe and appropriate manner.
This article is not intended to be a complete outline of the amendments to be made to the Family Law act 1975 (Cth).
The team at Feeney Family Law have reviewed the amendments and understand how the law and the decision-making framework in parenting cases is expected to change.
If you have any questions in relation to the changes, please do not hesitate to contact a member of our team.
Why students shouldn’t be so quick to write off family law
Every law student who aspires to be a family lawyer has experienced the somewhat awkward, but not surprising, shocked gasp and grimace of another person after telling them that family law is the goal.
That person (usually the aspiring corporate or commercial lawyer) almost always responds with a statement along the lines of “but that must be so hard and emotional”.
Given that many students aspire to be the Harvey Spector’s or Elle Woods’ of the world, it is incredibly common that many of them write off family law without considering the numerous benefits this area has to offer to a young lawyer.
As there is no Hollywood fictionalised family lawyer for students to aspire to, this article outlines three big ticket items of family law for young lawyers, and why students shouldn’t be too quick to write it off.
Time in court
A common goal of the aspiring corporate lawyer is their desire to become a great litigator. The aspiring commercial lawyers can be seen participating in the law school mooting competitions, or witness examination at every opportunity to advance their skills in this regard.
These students are ready for their time in court.
What many of them do not realise is that young family lawyers often have more exposure to the court system and appear far mor regularly in the Federal Circuit and Family Court than young corporate or commercial lawyers.
Between court ordered dispute resolution conferences and defended hearings, there are ample opportunities for young lawyers to appear before the court. Obviously, this greatly assists young lawyers with gaining an in-depth understanding of the court system and processes early on in their career.
Here at Feeney Family Law, our young lawyers frequently appear on behalf of our clients before the court for numerous reasons.
Interacting with the clients
Unlike commercial or intellectual property law, family law allows you to build significant rapport with your clients.
Our clients are almost always “everyday” people who come from an array of backgrounds and cultures, which require legal assistance as a result of a breakdown in their relationship.
Young lawyers have far more involvement in speaking and meeting directly with the client on a regular basis, than they might in a tax or commercial setting.
It is extremely common for young lawyers, and paralegals to have relatively constant communication with the client.
As you can imagine, this naturally develops young lawyers’ interpersonal skills which greatly assists in all aspects of life.
It is expected, and very common, that the clients are likely to be extremely emotional and in a particularly fragile, anxiety-fraught part of their life. Our work, and the outcome that we receive from a matter can have a potentially drastic effect on our client’s lives. For this reason, it is vital that young family lawyers actively listen and correctly advise their client’s while understanding the emotional turmoil and difficulty they are facing.
Students often wish to make a positive change in the world. Once a matter is finalised, and the client is satisfied with the outcome, it is immensely rewarding to have had such a positive impact in their lives. Often it is not just the client, but also their children that benefit from our work. This is something for students to consider when deciding whether family law is an option for them.
Getting the win
Something that practitioners who work in family law recognise very early on in their careers, is that there is no real win or lose in family law.
In many cases, a partial win is a win. It is not uncommon for client’s to “˜give and take’ throughout the process, especially at the negotiation and mediation stages of a matter.
The “need to win” mentality common in other areas of law is significantly challenged in family law.
That is not to say that family lawyers don’t need to fight to advance their client’s case, but the goal should never be to bulldoze over the other side to advance our client’s case.
Our clients are people, who often share children with the other party, and it is vital that we work together with the other side to advance everyone’s best interest.
A drawcard to family law is that it is resolution focused, rather than “˜win’ focused. While the collaborative approach is not always possible, it does allow young lawyers to acquire and exhibit skills of cooperation and “˜big picture’ thinking.
Family law practitioners choose to specialise in family law for an array of reasons, the pros outlined above are just a handful of them.
Hopefully next time a student is faced with the very common utter shock and disbelief from others, they enlighten them with the ample positives of a career in family law. Who knows, family law may gain a practitioner or two.
Five quick tips for working with your Financial Professional during your Family Law matter.
Most of our clients have, at least to some degree, an ongoing relationship with a financial professional that existed prior to separation.
For some people, that could be as limited as having a tax accountant do tax returns each year, while for others they have a close, day to day relationship with their accountants, financial planners and/or other professionals.
Whatever the relationship between you and your financial professionals, they can be an invaluable and integral part of a team assisting you through the legal and financial aspects of a separation.
The following five tips will help you get the most out of your financial professional when going through a separation.
Make sure you know who they are acting for.
This sounds simple, but many times an accountant or financial planner who someone thinks of as “their” financial professional is actually engaged by their ex-partner and/or a company/trust/business operated by one or the other of them.
In those circumstances, their first obligation will generally be to the person/entity who has engaged them.
If that is the case, it is generally best to find a new professional, unless you can be completely comfortable that any information you provide them will be kept confidential and they are willing to take you on as a client in your own right.
Understand what their expertise is (and what it is not).
Just like lawyers, financial professionals have their own individual skills, expertise, abilities and qualifications.
It may be that your financial professional is an expert at understanding complex tax issues, but cannot give financial planning advice about things like cashflow. In those circumstances there is little benefit in asking that person to prepare modelling based on a variety of different outcomes, but they are likely to be very helpful in considering the tax implications of different ways of structuring the transfer of a business (or part thereof).
Talking to your financial professional about their expertise, then discussing that with your family lawyer, will ensure that everyone is on the same page when it comes to deciding who needs to do what.
Engage them at the right time.
Different things are relevant at different stages of a family law matter and the effectiveness of the assistance from your financial professional will likewise change throughout your matter.
For example, at the very beginning of a family law property settlement matter, obtaining a lot of financial information quickly is very useful. The accountant for the family business is likely to have much of this information, at least for the business, and engaging or directing them to provide it to your lawyers and the other party can make what is sometimes a slow and involved process much quicker.
On the other hand, getting tax advice about potential business (re)structures before completing the disclosure process and obtaining valuations or getting an understanding of what the potential range of outcomes could be is potentially going to be money and/or time wasted.
Likewise, getting a financial planner to prepare modelling of what your financial future looks like after you have already negotiated a deal is unlikely to be of much assistance other than for the purposes of preparing a personal budget. If you had engaged them after you had received advice about potential outcomes but before negotiations, you could use that further information to guide you in negotiating an outcome that best suits your circumstances.
Know when to bring in a third party expert (and why).
Whilst the financial professionals who are part of your day to day lives are experts in their own field, there are a few specific areas that we strongly recommend bringing in a third party expert for.
The most obvious of these is for the valuation of a business (or legal entity such as company or trust) for family law matters. There are a number of expert forensic accountants who specialize in this field and we would strongly recommend that one of them be engaged for this step.
These third parties have the benefit of being independent, so their conclusions generally carry more weight in negotiations and before the Court. It is generally a requirement that an agreed single expert valuer be appointed if parties cannot agree on the value of legal entities and/or a business.
Be aware of limits to confidentiality.
It is important to know that there are limits to the confidentiality of the information you provide to your financial professionals.
Accountants, financial planners and other advisors can all potentially be subpoenaed to provide documents or give evidence in matters before the Court, so just be aware that information you provide them may be able to be obtained by your ex-partner.
There are also circumstances where you could be seen to have waived the legal professional privilege attaching to the instructions and advice given and received from your lawyers if you provide your financial professionals with advice you have received from your lawyers.
This is a complex area of law and can have serious consequences, so we always recommend getting specific advice from your lawyers before providing your financial professionals anything that your lawyer has provided you.
If you would like to talk to me or any of our team here at Feeney Family Law, please do not hesitate to contact.
The husband was the “˜primary income earner’ through his employment; the “˜financial spouse’.
The wife did not pursue her career in favour of raising the parties’ children. She was the “˜primary homemaker and parent’; the “˜non-financial spouse’.
Together the parties have about $300,000 in cash, a real property or two, cars and so on.
The wife is recently employed but earns well below average wage.
The husband continues to earn his good income and doesn’t pay any maintenance because the wife has sought to avoid paying the fees to run, and otherwise risk, the litigation.
By trial the wife has spent $150,000 on lawyers; the husband about $100,000.
The wife’s income is barely enough to support herself. She has used savings to meet her legal fees.
By contrast, the husband’s income is sufficient both to support a standard of living well above that of the wife and to meet his legal fees.
At trial the husband argues that the wife’s legal fees should be added back, and his should not because they were met from “˜post-separation income’.
Save for a bit of discretion here and there, this scenario is probably straight forward.
Now, replace “through his employment” with “through his business“, and introduce the concept that the business is operated through a family trust of which the wife is a beneficiary, and, say, shareholder of the corporate trustee. Less straight forward.
Why?
The Full Court in Trevi & Trevi1 reminded us that those famous paragraphs in Chorn & Hopkins2 established guidelines. There is a strong flavour of an analysis of the interests in the parties in the funds: income vs capital, but also the more complex situations.
In setting out the relevant principles in Trevi, Murphy J reiterated the distinction between pure income as a source and funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement.3
His Honour identified that the latter suggestion recognises the discretion inherent in the task and that adding back sums generated post-separation in the different manners suggested might create injustice as much as it might cure it.4
Trevi involved a first instance decision not to addback any notional property, including over $400,000 of the wife’s legal fees. The husband was a solicitor and had the advantage of his legal fees being “absorbed in-house”. He incurred about a third of the cost of the wife.
Rather than treating the issue of the wife’s legal fees as an addback, Thornton J purported to consider the matter under section 75(2)(o). But in conclusion her Honour said, in relation to section 75(2)(o), “[I] do not propose to make any “adjustment” to the pool for the funds which the wife has spent to pay some of her legal costs“.5
Murphy J spent considerable time explaining how the trial judge confused two established and alternative approaches:
to addback legal fees; or
to take into account paid legal fees under section 75(2)(o) in the consideration of whether to adjust the contributions-based assessment, and if so, to what extent.
But the confusion of two distinct exercises of discretion is not the source of the appealable error. The error was summarised in paragraph 72:
In my view, her Honour’s confusion as to the approach to the wife’s paid legal fees led to her Honour taking into account irrelevant considerations in her s 75(2) assessment and, concomitantly, failing to take account of relevant considerations.
The impact of not adding back legal fees was to have the husband responsible for 50 per cent of the wife’s indemnity costs on the contributions assessment, and 60 per cent of the wife’s indemnity costs on the final outcome. Thornton J did not include those considerations in her reasons. The Full Court found that to be a failure to take into account a relevant consideration.
Further, the Full Court was of the view that, despite discussing the circumstances of paid legal fees under a heading referring to section 75(2)(o), insufficient reasons were given to explain how the trial judge took into account the expenditure in circumstances where it was not added back.
In relation to the irrelevant consideration of the trial judge, it is useful to set out the relevant passage from her Honour’s reasons:
In both Calder & Calder and Chorn & Hopkins the Full Court affirmed that whether to take into account legal fees is a matter of discretion. This is an unusual circumstance where the wife was obliged to pay her legal fees of $437,628.10 whilst the husband, who is a solicitor, had the advantage of not being required to pay all of his legal fees other than approximately $142,587 which he has paid. Where there is no clear evidence that the husband will ever have to pay his legal fees, these are unusual facts which the justice of the case requires to be taken into account under s 75(2)(o) of the Act. In the unusual circumstances of this case and notwithstanding that the source of the funds paid by the wife for her legal fees was from joint property, I accept the submissions of counsel for the wife and do not propose to make any “adjustment” to the pool for the funds which the wife has spent to pay some of her legal costs. (emphasis added)
To the extent that the “unusual circumstances” were the reason not to give any weight to the paid legal fees, the Full Court said at [71]:
The “sole matter” informing the decision to not addback emerges as the same sole matter in her Honour’s purported consideration of the wife’s paid legal fees as a relevant s 75(2) factor. Again, I am respectfully unable to see how that factor, notably expressed as a reason for not adding back the fees, is relevant to the s 75(2) analysis. … (emphasis added)
That must mean that the Full Court took the view that the parties’ financial and historical circumstances, underpinning the disparity in their paid legal fees, was an irrelevant consideration in the section 75(2) analysis.
That being said, I do not purport to ignore the words “notably expressed as a reason for not adding back the fees”.
Interestingly, in the decision on re-exercise, no weight was placed on those “unusual circumstances” at all.6 The wife’s legal fees were added back, the husband’s were not, and there was no discussion in the section 75(2) analysis of the “unusual circumstances”.
I struggle to understand how even in that circumstance it could be said to be irrelevant to whether any weight is placed on those circumstances in the section 75(2) analysis.
I think that is because it is not an irrelevant consideration.
In Oamra & Williams the Full Court considered Trevi and said:7
As the Full Court in Trevi intimates at [42], when considering whether or not to add back paid legal fees, “source of funds” should be subservient to the overall discretionary consideration of the interests of justice in the circumstances of a particular case.
As discussed during submissions, an example of an injustice which might occur is if a party, who had developed significant earning capacity during a course of a long marriage, was able to use that earning capacity to pay legal fees when the other party, who did not have that earning capacity, was left with a liability to pay legal fees from their share of the property settlement order. Another example of possible injustice arises in this case where it was agreed that an unspecified amount of monies from a redundancy payment received by the husband were contained in bank accounts added to the table of assets and liabilities, yet the husband asserted that an unspecified part of the redundancy payment used to pay legal fees should not be added back.
In this case the primary judge declined to exercise a discretion to add back paid legal fees because of an inadequacy in the evidence on both sides in relation to the source of funds used to pay them.
The analysis in Trevi has been endorsed by subsequent Full Courts.8
Yes, Trevi is a case that turned on its own facts. However, the essence of those facts cannot be said to be so unusual:
the husband on a considerable income met his legal fees from his income;
the wife on very little income relied on capital;
the success of the husband’s career could only be said to be something to which the other party had made a significant contribution in her role as primary homemaker and parent.
The wife did not have the same opportunity to meet her legal fees from her income, nor was she a partner in a law firm which carried much of her costs of litigation. The husband had that opportunity due in part to the efforts of the wife throughout their marriage.
Thornton J identified those circumstances in the broader section 75(2) analysis:9
By reason of the arrangements made during what is indisputably a long marriage, the wife did not enhance her income earning capacity in any meaningful way. The wife attempted to contribute financially during the marriage in undertaking work for approximately 12 months in 2006 which was ultimately not viable because of the low remuneration, the needs of the children and the husband’s work commitments.
The recent decisions merely emphasise that the process of consideration of legal fees paid or owing is a discretionary exercise guided by authority.
A more cynical view could be that despite failing to give reasons for departing from guidelines is not an appealable error of itself, it is dangerous to do so.
What then for the family lawyer whose client is at risk of being punished for having no ability to meet their legal fees other than from capital?
In my view, whatever your argument is, articulate it well.
Fear often accompanies the section 75(2) case due to uncertainty in achieving anything from it. But the recent cases in which legal fees are not added back usually involve an inadequacy of evidence about the quantum and/or source of paying legal fees. I have included some cases below for example. Do not be the lawyer who does not produce sufficient evidence.
Some cases involve a concession to addback fees paid by capital, with no argument to addback the fees paid by income, and then some hopeful attempt for a section 75(2) weighting.
In the circumstances I have addressed in this paper, I think that more emphasis could be placed on the types of “injustice” alluded to in Trevi and Oamra & Williams and seek that both parties’ fees be added back despite their sources because of the nature of the circumstances.
Doing so does not offend section 117, and it arguably requires no weighting under section 75(2) as in essence the overwhelmingly offsetting factors are found in subsections 75(2)(b) and (k), the latter of which provides:
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
An important observation from the cases is that the difference between the parties’ fees is often a major consideration in the section 75(2) analysis.
If a refusal to addback legal fees is argued, it should be accompanied with at least a recitation of principle that the impact of that decision must be considered.
Despite being described as a “de facto costs order” by Judge Morley,10 a refusal to addback legal fees apparently does not require consideration of subsection 177(2A). It is often argued that consideration of parties and their costs is best left to an application after trial. But the authorities on costs do not discuss the critical circumstances, such as subsection 75(2)(k), relevant to the parties’ expenditure on legal fees.
But of all the reported decisions, no distinctive pattern emerges even in this decade.
Baumann J put it aptly in Duffy & Duffy:11
I am satisfied that justice and equity between the parties is better achieved by adding back the sums the husband has elected to pay to his chosen lawyers rather than for the wife to not only be required to represent herself but to, effectively, make a contribution of the husband’s costs by his use of the funds that would otherwise have remained in the pool.
Mr Moxon, to his credit, valiantly contended that the discretion should not be exercised relying on two authorities of the Full Court where the Full Court found the primary judge was not in error in those cases in not adding back for legal expenses (see Oamra & Williams (2021) FLC 94-035; Dulton & Dulton (2020) FLC 93-984). In my view, those authorities are of little assistance (and are distinguishable on their individual facts) and can be offset by numerous Full Court authorities where a primary judge did addback legal expenses and no error was found to exist. This is, essentially, the nature of a discretion.
Review of the cases is important for context to inform the possible outcomes, rather than reliance on purported authority.
Judge Glass applied the comments from Oamra & Williams in Emmeran & Emmeran:12
Generally the payment of legal fees from post-separation income rather than from funds that existed at separation would not be added back unless they were generated from “assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement.”[7] However, that focus on the source of funds should be subservient to the overall discretionary consideration of the interests of justice in the circumstances of the particular case.[8] It may be unjust where a party “who had developed significant earning capacity during a course of a long marriage, was able to use that earning capacity to pay legal fees when the other party, who did not have that earning capacity, was left with a liability to pay legal fees from their share of the property settlement order.”
Here, Ms Emmeran developed her significant earning capacity that exceeds $100,000 per annum during the parties’ 18 year marriage. She had the benefit of income from Mr Emmeran during the period in which she was able to accumulate funds to pay her legal fees. Ms Emmeran did not establish that Mr Emmeran was able to pay his legal fees which are anticipated to be owing in the amount of approximately $41,000. He nevertheless made contributions to Ms Emmeran’s household which persisted for 18 months after he left the former matrimonial home from his more modest income of approximately $65,000 per annum.
In those circumstances, I consider it would create an injustice for Ms Emmeran’s paid legal fees not to be added back. Given her ultimate concession that the totality of her savings ought be included in the assets to be divided between the parties had she not paid her legal fees from those savings, there would have been an increase in the funds available for distribution to Mr Emmeran by the same sum. To fail to add back Ms Emmeran’s paid legal fees would have the effect of requiring Mr Emmeran to contribute to her legal costs contrary to the position enshrined in subsection 117(1) of the Act.
In Jong & Jeng the Full Court said:13
Fundamental to a consideration of whether expenditure is “added back” into the assets of the parties for division is the source of those moneys. In circumstances such as in this case where a party has been earning an income since separation, it would be necessary to demonstrate that the source of the funds in question was connected to the marriage in some way.
In Kasiopoulos & Garapiperis14 the Full Court considered an appeal in which the trial judge erroneously recorded that the husband accepted that his about $70,000 in legal fees should be added back. He in fact opposed that addback on the basis that he met his fees largely from post-separation income. On the re-exercise, the Full Court said:
The evidence before the trial Judge in relation to the funds available to the husband in the post-separation period, from capital and income to which we have earlier referred is in our view sufficient to justify adding back the husband’s paid legal fees in the sum of $77,292.15. This is particularly so given that the wife’s paid legal fees of $47,206.06 should be added back. The evidence reveals the wife to have received materially less income or capital than the husband did in the post-separation period.
In Bazzi-Cirino & Cirino,15 the wife ran a professional practice from which she met her legal fees and otherwise by a line of credit. The husband had loans from his family to meet legal fees. The wife argued that no legal fees should be added back and no loans relating to legal fees should be included in the balance sheet. The husband sought that both paid legal fees and the loans should be included. Rees J determined not to include in the balance sheet either paid or loans for legal fees. Instead, her Honour took into account under section 75(2) the “difference in their liabilities for legal fees”.
The complexity of addbacks especially in the most settled category, legal fees, remains. The guidelines are too blurred.
1Trevi & Trevi [2018] FamCAFC 173 Murphy J with whom Alstergren DCJ and Kent J agreed. 2Chorn & Hopkins [2004] FamCA 633 Finn, Kay & May JJ. 3At [31]; see also [41]. 4At [42]. 5Trevi & Trevi [2017] FamCA 321 at [424]. 6Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51 (Murphy J with whom Alstergren CJ and Kent J agreed), see for example [46]. 7Oamra & Williams [2021] FamCAFC 117 (Strickland, Watts & Sutherland JJ). 8Carron & Laniga [2019] FamCAFC 115 at [56] (Aldridge, Kent & Austin JJ). 9Trevi & Trevi [2017] FamCA 321. 10Ungur & Inaba [2021] FedCFamC2F 65 at [175] and [177], for example. 11Duffy & Duffy [2022] FedCFamC1F 635. 12Emmeran & Emmeran [2022] FedCFamC2F 1507. 13Jong & Jeng [2014] FamCAFC 156 (Finn, May & Ainslie-Wallace JJ ). Cited with approval in Eufrosin & Eufrosin [2014] FamCAFC 191 at [41] and [42] (Thackray, Murphy & Aldridge JJ). 14Kasiopoulos & Garapiperis [2012] FamCAFC 85 (Coleman, Thackray & Stevenson JJ). 15Bazzi-Cirino & Cirino [2014] FamCA 920.
Practitioners continue to worry about the vulnerability of their client if a spouse maintenance order has been made in favour of the other party or if there has been an acknowledgement that a portion of a property settlement is a recognition of a spouse maintenance order.
Section 77A was inserted into the Family Law Act in 1987. The explanatory memorandum makes clear that, “This clause inserts into the Act a new section 77A, the primary purpose of which is to enable the income testing for social security purposes of maintenance received other than by way of periodic sums”.
If an order was not expressed to be one to which section 77A applied, then any payment or transfer under the order would not be taken to make provision for the maintenance of the party to the marriage.
The second reading speech was made on 26 May 1987 by John Spender QC.
“The purposes of the Family Law Amendment Bill 1987 are to amend the Family Law Act so as to reinforce the principle that parents, not the taxpayer bear the prime responsibility for the maintenance of their children.”
“Since the Family Law Act was enacted, society has become accustomed to high levels of marriage breakdown. Perhaps those levels were inevitable. About 35% of marriages end in divorce and for many marriages are simply a contract.”
He went on to say:
“Just as many treat the institution of marriage casually, so do many treat responsibility for maintenance of their children and former spouses with equal casualness.”
“The majority of custodial parents either receive no maintenance at all or what they get is manifestly inadequate so that many live in poverty and suffering from which they cannot escape.”
“At present, in considering what maintenance the parties to a marriage should be ordered to pay, the court is required to consider the eligibility of either party for social security benefits. This means that responsibility to support children can be shifted from the parents to the taxpayer. This is not acceptable.”
“As a matter of history, at the time that the Family Law Act was brought into force, the government of the day had recently introduced the supporting parents’ benefit. Since that time, there has been an astronomic rise in the cost of that benefit to the Australian taxpayer from $40.6 million in 1974 to $1,238 million in 1986.
“These are complex questions because one is dealing with how to divide a limited amount of money between various fundamental obligations.”
The 1987 amendments brought three important changes. One was the amendment to section 75 which was the section 75(3) inclusion.
Lionel Bowen, the Attorney-General, moved that the bill be read a second time. He said:
“For 11 years the Commonwealth and the States have been negotiating for a reference of powers from the States in respect of family law matters. Last year (1986) four States, New South Wales, Victoria, South Australia and Tasmania enacted legislation referring to the Commonwealth powers over the maintenance, custody and guardianship of and access to all children and for the payment of expenses in relation to children and childbearing.”
At that stage, Queensland and Western Australia were outside those making the referral of powers.
Section 77A was described in this way:
“The bill also inserts new provisions to enable the income testing for social security purposes of maintenance received other than by way of periodic sum.”
The 1987 amendments also introduced the concept of judicial registrars which are so significant in the present court structure.
Both s.75(3) and s.77A were introduced to ensure that the impost on the social security system was reduced as much as possible.
The same amendment act introduced section 66L which ran parallel to s.77A. The court was to express the order to be one to which “s.66L applies and must specify the child or children for whose maintenance provision is made by the payment, transfer or settlement and the portion of the payment or the value of the portion of the property attributable to the provision of maintenance for the child or for each child”.
Section 66N permitted a variation or discharge of a child maintenance order and s.66N(1) to (4) and (6) to (10) re-enacted the substance of s.83 of the principal act in relation to the variation or discharge of a child maintenance order.
Paragraph 83(2)(b)(a) provided for an additional ground on which a spousal maintenance order could be varied. The new ground for variation is that “the amount to be paid under the order (where the order was made by consent) is not proper or adequate. In satisfying itself the order is not proper or adequate, the court must have regard to any payments or transfers of property previously made to or for the benefit of the party to the marriage by the other party”.
Section 87A was introduced and “the primary purpose of which is to enable the income testing for social security purposes of maintenance received other than by way of periodic sums”.
Mehta & Crimmins [2021] FedCFamC1A 73, is a significant spouse maintenance decision.
The outcome of this appeal was that one Division 2 order was successfully appealed and an application for summary dismissal was remitted for hearing by a judge other than the primary judge.
The wife’s application for spouse maintenance had been permanently stayed.
The parties began to cohabit in April 2017 at about the time they married, and they separated on 1 August 2017 and divorced on 6 March 2019.
The wife commenced proceedings seeking orders for property settlement and both interim and final spouse maintenance orders.
Interim orders were made on 11 December 2017 requiring the husband to pay the wife spouse maintenance of $1,070 per week as well as $1,800 to be applied to a rental bond.
In April 2018, she filed an Application in a Case. She sought spouse maintenance of $1,515 per week, $450 per week towards rental expenses, and $13,950 to assist her with setting up rental accommodation, dental and medical expenses and a further $1,280 to assist her to repay a debt incurred for her living expenses. She sought $10,000 being her costs of proceedings in relation to a property dispute, and $100,000 on account of her legal fees in the family law proceedings.
On 1 June 2018, the judge ordered the husband to pay the wife spouse maintenance of $1,500 per week and a lump sum of $15,000.
At that time, the wife was living in Australia on a bridging visa and the husband had cancelled his sponsorship of her spouse visa. She was not working and was ineligible for government support.
A finding was made that she was unable to support herself and that she was in need of support until she was able to obtain “gainful employment”.
Further, the court found that the husband had the capacity “to meet on ongoing but interim obligation for spousal maintenance”.
The court ordered a lump sum payment to the wife of $67,000 to meet her costs of the property proceedings.
On 20 April 2018, the wife amended her Initiating Application and sought a lump sum payment of $1.3 million as property settlement. She sought $2,000 a week for a period of five years.
That application never came to a hearing.
On 25 July 2019, consent orders were made that provided that the husband would pay the wife a sum of $170,000 in five tranches. The order for the payment of the lump sum was expressed to be a payment pursuant to s.79 of the Family Law Act.
Order 10 of those consent orders was as follows:
“All interim spousal maintenance orders are discharged and to the date they stand paid.”
Order 11 of those consent orders was as follows:
“All extant applications be dismissed with no order as to costs with the intention that each party bear their own costs.”
At that stage, the extant applications included the wife’s claims for spouse maintenance in her amended Initiating Application filed 20 April 2018.
On 4 March 2020, the wife brought an application seeking $195,000 as lump sum spouse maintenance and interim orders for a payment of $100,000 for her security of costs. She also sought various injunctions.
The wife amended that application seeking additional orders that the husband pay her $760 per week as living expenses, $6,138 being her university tuition fees for the summer semester, and $24,552 for the autumn semester university tuition fees.
The husband applied to have that amended application summarily dismissed.
This issue was heard as a discrete issue on 5 March 2021 and was determined on 21 June 2021. “The primary judge found that the wife was precluded from continuing the application of 19 November 2020 by operation of res judicata because of the dismissal of the earlier claim for maintenance. His Honour then permanently stayed the wife’s application”.
There were two grounds of appeal. One was that the wrong principle had been applied in making the order that the wife be precluded from continuing the application and the second was the primary judge erred by failing to take into account all the evidence relevant to the application before him.
The Full Court said at paragraph 21:
“There is no need to consider the second ground because the first ground will succeed as the primary judge erred in principle in making the order for the permanent stay.”
No-one had asked the primary judge to permanently stay the wife’s application.
The Full Court said it was not appropriate to make that order.
The Full Court applied the High Court statement from Chamberlain v Deputy Commission of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 510-511:
“… It is no answer to say that the Court might, if appropriate stay the second action as an abuse of process. The impediment goes deeper than that; res judicata may sustain a plea of abuse of process but in that case the appropriate remedy is to strike out the later action.”
At the end of this appeal, the court remitted the husband’s application for summary dismissal to the Federal Circuit and Family Court of Australia Division 2.
The balance of the case requires serious attention.
The primary judge said:
“The Court accepts that the Applicant retains a right to commence proceedings pursuant to section 74 of the Act in other circumstances where the substance and the characterisation of which are not the same as these proceedings. What the Applicant cannot do is maintain these proceedings.”
At the appeal, the husband’s senior counsel did not adhere to the res judicata argument.
The argument on appeal was that “the dismissal of the wife’s earlier maintenance applications, consequent on the entering of the consent orders, permitted her to bring another application based on different circumstances but not, as here, where he submitted the wife was advancing the same claim”.
At paragraph 30:
“Thus the nub of the husband’s assertion is that the wife’s claim for maintenance made in 2018 and dismissed by the July 2019 consent orders was substantially the same as that sought to be advanced in the November 2020 application.”
The husband had argued the concept of cause of action estoppel. The operation of that principle was described by Edelman J in Clayton v Bant[2020] 95 ALJR 34 as:
“… if the judgment finally resolved a conflict about the existence or extent of a “cause of action” then the parties to that proceeding, or their privies, will be precluded from relitigating that cause of action.”
The Full Court then set out the important discussion as to in what circumstances can a party be precluded from seeking spouse maintenance.
The statute confers the power to make orders for spouse maintenance.
The Full Court said:
“Whether the Court should exercise its discretion and make an order constitutes the justiciable controversy.”
The High Court in Clayton said:
“The rights created by ss 79(1) and 74(1) cannot “merge” in any judicial orders other than final orders of a court having jurisdiction under the Act to make orders under those sections. The rights of the wife to seek orders under ss 79(1) and 74(1) continue to have separate existence unless and until the powers to make those orders are exercised on a final basis and thereby exhausted.”
The Full Court said that they didn’t consider that in the circumstances of this case, the court’s “jurisdiction to make spousal maintenance orders has been exhausted and no res judicata arises”.
At paragraph 35 they said:
“We do not accept that the wife was precluded from advancing the claim for spouse maintenance in the November 2020 application because of claim estoppel.”
The Full Court referred to s.72(1) of the Act.
The Full Court noted that in s.72, the matters are expressed in the present tense. The Full Court went on:
“Once those two conditions precedent to an order being made are established, s.74 of the Act empowers the court to make an order for the maintenance of a party as it considers proper”.
Further, the Full Court pointed out that it must be at the date of the determination of the application.
Paragraph 39 says:
“It is not suggested that a party’s liability to support the other party ceases on the conclusion of property settlement proceedings by orders nor by the dissolution of the marriage. Indeed s.83 of the Act (while not relevant here) contemplates the revival, variation or dismissal of existing orders for maintenance.”
Section 44(3) provides:
“that an application for spouse maintenance must not be brought more than 12 months of the date of divorce without leave.”
Paragraph 41:
“A party’s right to seek spouse maintenance is capable of being exercised many times and subject to leave over many years. So much is apparent from the terms of the sections themselves.”
The Full Court said:
“The dismissal of the wife’s earlier application did not quell any controversy nor finally resolve a conflict of the existence of a right of the wife to spouse maintenance.”
Clayton & Bant [2020] 94 ALJR 34 is often approached as a jurisdictional case.
The husband in that case had applied to the Family Court for a permanent stay of property settlement proceedings and spouse maintenance proceedings on the basis that the ruling of the Dubai Court operates as a bar to those proceedings “by virtue of the operation of the principles of res judicata – cause of action estoppel”.
At first instance, the trial judge had dismissed the application for a permanent stay.
The Dubai proceedings did in fact not deal with any right of the wife to alimony.
The Full Court ordered a permanent stay of the property settlement proceedings and the spousal maintenance proceedings. The Full Court in that case consisted of Strickland, Ainslie-Wallace and Ryan JJ.
The Full Court in Mehta & Crimmins consisted of Ainslie-Wallace, Aldridge and Rees JJ.
The High Court at paragraph 24 referred to the right conferred on the wife as a party to the marriage by s.74(1) of the Act. “That right is to obtain in the discretion of the Family Court such order for the provision of maintenance by the husband as the court considers proper having regard to the matters referred to in s.75(2).”
“The justiciable controversy as to whether such an order should be made constitutes the matter defining the jurisdiction of the Family Court.”
The High Court identified that the rights were statutory rights and that therefore, the Dubai Court couldn’t give rise to a res judicata in the strict sense in which that term continues to be used in Australia. The right created “by s.79(1) and s.74(1) cannot merge in any judicial orders other than final orders of the court having jurisdiction under the Act to make orders under those sections”.
The High Court considered that the Full Court’s broad-brush transactional approach was not supported by authority.
Atkins & Hunt [2016] FamCAFC 230 is another significant spouse maintenance case. The Full Court on this occasion was Bryant, May and Murphy JJ, with the principal judgment being written by Murphy J.
Leave was granted to the wife to file a further Amended Notice of Appeal. She was granted leave to appeal. Her appeal was allowed. Orders 1, 2 and 3 of the orders of 21 August 2015 were set aside.
The wife was also ordered to file and serve any Amended Initiating Application within 21 days of the date of the orders.
On 14 July 2015, the wife filed an Initiating Application. Orders for interim and final spousal maintenance were sought. That would of itself require a variation of a spousal maintenance order made by Aldridge J on 4 December 2014 after a trial of property and spousal maintenance issues.
That application was filed when an appeal against Aldridge’s orders were pending and after he had refused her application for a stay of his orders.
At the hearing on 21 August 2015, McClelland J indicated that the court’s jurisdiction to make the Orders sought by her was a big issue.
The husband had raised the issue in his Outline of Argument filed ahead of that hearing.
The wife then argued in her Outline of Argument dated the day before the hearing that if her contention for relief pursuant to section 83 of the Act was rejected, leave should be granted to amend so as to permit her to seek an order for maintenance pursuant to section 74 of the Act. An application for that leave was made orally before His Honour.
The wife’s Initiating Application was dismissed with the court ordering that it was without jurisdiction to make an order under section 83. The wife’s oral application for leave was dismissed with the court expressing the view the amendment “would effectively circumvent section 44(3) of the Act”.
At paragraph 7, the Full Court set out four questions as those to be determined by the Full Court. They were:
Did the wife’s application seek, in any event, an order pursuant to s 74of the Act as an alternative to her claim pursuant to s 83 of the Act?
If that question is answered in the negative, was there “in force an order” within the meaning of s 83of the Act as at the date of the hearing of the wife’s application so as to permit the court to, relevantly, “vary the order so as to increase or decrease any amount ordered to be paid”?
Is there a distinction between a maintenance order which is “in force” as s 83requires and an order that has “ceased to have effect”?
Was his Honour’s refusal to grant leave to the wife to amend her application attended by an error of law or did irrelevant considerations attend the exercise of that discretion?
This judgment has headings. They are:
The context for the primary judge’s orders;
Was S 74 pleaded in the alternative?
The S 83 questions;
The questions as to s 44(3) and leave to amend;
Leave to appeal;
Costs of the appeal;
Proposed orders.
His Honour considered the form of the orders sought by the wife in her Initiating Application.
Order 2 sought a variation and orders 3 and 4 sought detailed payments to the wife. Later, 3 and 4 were construed by Murphy J as “in effect, particulars of the order for modification sought in paragraph 2″.
On 4 December 2015, among other orders made by Aldridge J, His Honour ordered that all existing orders for spousal maintenance be discharged upon the completion of the sale of the former matrimonial home. When the wife filed this application, completion of the sale had not occurred. By the time the application was heard on 21 August 2015, completion of the sale had occurred.
The Trial Judge said, “The Court now has no jurisdiction to make an order under section 83 because, as at the date of hearing, there is no longer an order in force in respect to spousal maintenance. I therefore find that the Court is without jurisdiction to make an order under section 83“.
The wife sought to bring an application under section 74. The Trial Judge considered that it would confront section 44(3).
The Full Court did not accept that section 74 had been pleaded in the alternative.
The section 83 discussion is important.
At paragraph 27, the Full Court said:
“It is uncontroversial that there was “in force an order” with respect to maintenance of the wife when the application was filed – that is at the time the jurisdiction granted by s 83 of the Act was invoked.“
An argument of statutory interpretation was made.
At paragraph 29, His Honour said:
“In my view, s 83 is to be interpreted in the same manner as the statutory provision considered by the High Court (albeit in a different context) in Lacey v Attorney-General (Queensland) (2011) 242 CLR 573, that is as “a provision which confers jurisdiction … together with powers to be used by [the] Court in the exercise of its jurisdiction.” [593]
The Court continued at 30:
“The conferral of jurisdiction in s 83 is additional to the jurisdiction conferred in respect of matters arising under the Act in which the matrimonial cause “with respect to the maintenance of one of the parties to the marriage” is instituted by proceedings relating to same. The jurisdiction conferred by s 83 is “the authority which [the] court has to decide” variation of a spousal maintenance order and “in the exercise of that jurisdiction [the] court has powers expressly or impliedly conferred (see Harris v Caladine (1991) 172 CLR 84, at 136 per Toohey J.)“ by s 83. “The claims for relief illuminate the scope of a controversy which constitutes a matter and once the [court] has jurisdiction to determine a controversy it has power in the exercise of that jurisdiction to give the remedies sought” (see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 590 per Gleeson CJ, Gaudron and Gummow JJ).“
The Court then referring to the Asic v Edensor decision again said, “characteristically an exercise of jurisdiction is attended by an exercise of power”.
At paragraph 32, the Full Court said:
“The jurisdiction conferred by s 83 is validly invoked by the filing of an application seeking relief pursuant to that section when “there is in force an order … with respect to the maintenance of a party to a marriage”.
At paragraph 33:
“Thus, in my view, the court’s power to make an order within the jurisdiction properly invoked by the filing of the wife’s application pursuant to s 83 depends entirely on whether there was “in force an order” at the date of hearing of that application.”
The Court said the question wasn’t really about whether the house had been sold between the filing and the hearing of the application but “whether the statute gives the court power to make the order sought at the time the power is sought to be exercised”.
Section 82 provides for the cessation of spousal maintenance orders being the death of the party whose maintenance is being paid or the death of the party liable to make the payments or upon the remarriage of the party unless in special circumstances.
There was argument before the Court as to the difference between “ceases to have effect” and an “order in force”.
At paragraph 41, Murphy J said:
“Each of sections 82(4), 82(7) and 82(8) provide specific powers to the court in the circumstances provided for within s 82. The powers provided for in s 83 are in respect of a different grant of jurisdiction.That different grant of jurisdiction deals with a circumstance that may be different from “an order with respect to the maintenance of a party to a marriage” which is the subject of s 82.Section 83 can deal with orders made “before the commencement of [the] Act” and orders which are “made by another court and registered in [the court] in accordance with the applicable Rules of Court”.Thus, orders may be “in force” for the purposes of s 83 although they are not orders made under the Act to which s 82 applies.That in my view provides the reason for the difference in legislative language.”
The Caska case, a (2002) FLC 93-092 decision was then discussed. That case held “that an order for lump sum maintenance is, once paid, not “an order in force” for the purposes of s 83 of the Act“.
At paragraph 46:
“The expression “in force an order” means, in my view, an order pursuant to which (relevantly) obligations to make payments in accordance with its terms exist at the time that the power to make a variation order falls to be exercised. Conversely, where, as here, an order is fully executed by the time of the hearing because of the satisfaction of a condition attaching to payment, there is no order “in force” within the meaning of s 83(1) of the Act.”
In this case, that meant that the wife could not agitate a claim for maintenance relying on s 83.
Section 80(2) did not assist either.
The court then considered s 44(3).
His Honour formed the view that “neither the ordinary and natural meaning of the expressions there contained, nor the broader provisions of the Act pertaining to spousal maintenance, admit of reading down the terms of s 44(3) in that manner”.
Paragraphs 52, 53 and 54 then discuss the interplay of spousal maintenance and s 44(3).
At paragraph 52:
“First, and centrally, the liability for spousal maintenance does not come to an end upon the end of the marriage, nor necessarily when orders are made pursuant to Part VIII of the Act...That new spouse maintenance orders can be made in circumstances where the initial order is properly made within time is entirely consistent with a liability for spousal maintenance persisting despite the formal end of the marriage or other financial orders having been made.“
At paragraph 53:
“Secondly, no specific reference is made within s 44(3) either to s 83 itself or to any link between the expressions used within s 44(3) and like expressions in s 83… it is of significance in my view that the exceptions provided for in respect of settlement of property are made by reference to specific sections whereas the expressions used in respect of maintenance are not. The nature of orders for settlement of property and their “finality” should be contrasted with orders for spousal maintenance which the Act contemplates specifically might be later modified. Despite that important distinction, the words used in s 44(3) are not confined by specific reference to s 83.“
Paragraph 54:
“Thirdly, the expression “an order previously made” is not defined, confined or restricted in its operation. Fourthly, the expression “revival” is not confined in s 44(3), as it is in s 83, to the situation where an order has been suspended.… the word “revival” is a word of ordinary usage and meaning…Thus, s 44(3) can be seen as having in contemplation “an order previously made” becoming “operative or valid again“.“
His Honour said at paragraph 56:
“I conclude that it was not necessary for leave to be sought pursuant to s 44(3) so as to permit any amended application for spousal maintenance to proceed.”
The Full Court Judgment argued against the s 81 having an impact on the maintenance powers. At paragraph 60:
“As has been seen, s 44(3) does not impose an impediment to the wife pursuing an order for maintenance pursuant to s 74 of the Act so as to seek the revival of “an order previously made in proceedings with respect to the maintenance of a party”. Indeed, as has earlier been seen, the Act contemplates applications for maintenance that sit squarely outside any “finality” said to be effected by earlier orders.”
The implications of the views expressed in this Judgment are, in the writer’s view significant.
Kay Feeney, Feeney Family Law Legalwise Family Law Conference
As practitioners we recognise that many more people are assisted to resolution by family lawyers giving advice rather than by a judicial officer.
We work within the illumination of a discretionary judicial power and usually would expect to fall within the same range as the lawyers acting for “the other side”.
If we are not within “the range” then we need to re visit our analysis of the facts of the case and the law of contributions and adjustments.
Practitioners need to be familiar with the variety of arguments they can use or against which they may defend.
This paper hopes to help you as you rattle the bones, light the incense and mutter to yourself about the true meaning of your client’s contributions.
The starting point is of course section 79 (or section 90SM).
The first task of the Court is to identify the parties’ existing legal and equitable interests in their property: Stanford. That of course requires a consideration of appropriate liabilities: Biltoft.
The assessment of all of the relevant contributions, and then whether there ought to be an adjustment to that assessment, and if so the extent of that adjustment, leads us to “˜the range’ and then to an outcome.
Initial contributions
We usually look carefully at initial contributions. A convenient way to consider the recognition initial contributions are often given is to consider the concept of erosion.
That principle was considered in Kardos v Sarbutt [2006] NSWCA 11 (cited in Baranski & Baranski and Anor [2012] FamCAFC 18 at [248]):
65 In Pierce & Pierce (1998) 24 Fam LR 377; (1999) FLC 92-844, the Full Court (Ellis, Baker and O’Ryan JJ at 85-881) explained the significance of initial contributions and their “erosion” in a way which makes clear that, with the passage of time in the course of a relationship, substantial initial contributions may(emphasis added) in an appropriate case be eroded by the offsetting and ongoing contributions which result more and more in there being a totality of contributions, including of a non-financial kind, not all of which can be satisfied in full out of the available pool. As a result, all contributions, including those made at the outset, are “eroded”, in the sense that they cannot all be satisfied in full (emphasis added):-
[25] In addition to referring to a short passage from the judgment of Fogarty J in In the Marriage of Money (1994) 17 Fam LR 814; FLC 92-485, the trial judge noted that the passage was cited with approval by the Full Court (Nicholson CJ, Baker and Tolcon JJ) in In the Marriage of Bremner (1994) 18 Fam LR 407; (1995) FLC 92-560.
[26] In Way and Way (1996) FLC 92-702, the Full Court (Barblett DCJ, Finn and Butler JJ), said at 83,404:
In the subsequent Full Court decision in Bremner all three Judges expressly preferred the approach taken by Fogarty J in Money over that taken by Lindenmayer J in the same case. Thus, and notwithstanding the attempts by Counsel for the husband in this case to demonstrate that there was some inconsistency between what Fogarty J said in Money and what was actually said in the joint judgment of the Full Court in Lee Steere , we regard the law in this area as now settled by the statement by Fogarty J in Money (and subsequently accepted by all members of the Full Court in Bremner ) that “… an initial contribution by one party may be `eroded’ to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party” (emphasis added).
[27] However, it is important to put that quotation in its correct context. Fogarty J in In the Marriage of Money said at Fam LR 816; FLC 81,054:
I am unable to agree with the criticism by his Honour in the passage in his judgment immediately after that quotation or of his analysis of the issues involved. In an appropriate case, in my view, an initial substantial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party. I feel, if I may say so with respect, that his Honour’s formulation to the contrary is unrealistic and does not correspond with common experience in the court in many of these cases.
I think it is legitimate for me to say, as I was a member of the Full Court in the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91-626, that His Honour has read too much into the passage to which he refers and that the term “off-setting contribution” does not necessarily mean “greater contribution”. It simply reflects the circumstance that the respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party. This is, in my view, made clear by the Full Court in White (1982) 8 Fam LR 512; FLC 91-246 where that court pointed out that the principle in Crawford (1979) 5 Fam LR 106; FLC 90-647 is that the original contribution should not be carried forward as a mathematicalproportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be later factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
[28] In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: see also Campo and Campo (Full Court, Sydney, 19 May 1995, unreported) at pp 21-2 of the joint judgment of Ellis, Lindenmayer and Finn JJ and Zahra and Zahra (Full Court, Sydney, 3 October 1996, unreported) per Ellis J at p 10.
66 In Howlett v Neilson, Hodgson JA referred to that passage and, observing that there was no clear statement concerning the “erosion principle” in cases under the Property (Relationships) Act, suggested that it was by no means clear that it would apply to the same extent as under the Family Law Act where matters other than contributions can be taken into account and where the relationship involves a public commitment to mutual support for life [Howlett, [34]]. However, as the Full Family Court pointed out in the passage just cited, it is really a matter of weighing initial contributions with all other relevant contributions. In a short marriage, the other contributions may be relatively insignificant. In a long marriage, ongoing income contributions and contributions as a homemaker and parent, if they have not resulted in the acquisition of assets sufficient to recognise them, may warrant the “erosion” of initial contributions so that all contributions can be satisfied to some extent, though not in full, out of the available property. There is no reason why this approach would apply to any less extent under the Property (Relationships) Act than under the Family Law Act; it does not involve taking into account matters other than contributions, but is part of the methodology for weighing and balancing the different contributions.
67 Significant factors affecting the application of the “erosion principle” are the length of the relationship and, in particular, the extent to which there have been other or off-setting contributions which also have to be satisfied from the available pool. It is to accommodate those contributions that the initial contributions are “eroded”.
The Full Court in Pierce & Pierce told us not to associate erosion of initial contributions as a mere passage of time issue.
In Wallis & Manning a different Full Court elaborated.[1]
The parties were married for 27 years
Judicial debate has surrounded the so-called “erosion principle” but that debate has centred primarily on the question of whether early capital contributions are eroded only by “an imbalance” in later contributions.
In our view, talk of “erosion” of the early capital contribution obscures the issue rather than illuminates it.
However, it can be taken as well settled that the length of the relationship has a significant impact on how early significant capital contributions should be viewed in assessing the totality of the parties’ contributions.
The Full Court then referred to Lee Steere and Money & Money and said:[2]
The length of a marriage is important, then, in assessing the respective contributions of the parties, particularly when it is said that significant capital contributions made early in the marriage are a dominant feature of that assessment.
What we are seeing as early as Pierce, at least in relation to initial contributions, and a re-emergence in the late 2010s, is what practitioners sometimes conveniently refer to as the Jabour type assessment.
That is, there need not be such a nuanced identification, analysis and characterisation of contributions.
Large capital introductions, injections or acquisition over the long term must be held against the role of the other party.
It invites error to identify only the matters which can be “˜distinguished’ as not being equal.
For instance, both parties contributing to the home equally, both working full time, but one earning a greater income.
Another instance is the minor initial contribution.
Parties and practitioners will often cling to the discrepancies to advance their case.
In my view, it is not by coincidence that the Full Court lays down authority to take the big picture approach.
If we as practitioners whole-heartedly adopted that Full Court-endorsed approach, perhaps we would find ourselves agreeing on the range and even the outcome more often.
Equality is not allowed to be the starting point. But it is certainly an oft-arrived conclusion.
Practitioners may come across the rare case in which a client argues a gift, a wedding for example, ought to be considered a “joint” contribution. The usual principle is that such a gift is deemed to come in from your side: Gosper (1987) 11 Fam LR 601, 612 per Fogarty J:
The critical case is where a relative of one of the parties gifts property to both the parties to that marriage. Dependent upon the circumstances of the case, it is, in my view, open to the Court in such a case to look at the actuality and treat that as a “financial contribution made directly … on behalf of” the spouse relative (see for example Rainbird, Matthews, W, Underwood, Abdullah, Freeman, cf Cleary, Hogan J in Freeman, and Antmann, supra ).
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W’s case at 75,527 .
It is clearly a “financial contribution” and one “made directly” to the acquisition, conservation and improvement of property. In such cases it is open to the court to conclude, if the facts justify it, that it was made “on behalf of” one spouse.’
Commonly one party argues that their financial contribution ought to be given greater weight because they entered the relationship with their income earning capacity, be it skill, experience or qualification. It is trite to distinguish that argument from one of special contributions.[3] Warnick J has discerned the argument in an unreported decision:[4]
… what is being counted as a contribution by the husband is not his potential to produce income. All that is being done is recognising that the actual financial contribution of the husband was made in the context of the exercise of a capacity substantially developed prior to cohabitation.
That argument however often falters to the inevitable holistic assessment. In Grier & Malphas [2016] FamCAFC 84 at [91]:
… A person with the same “skill set” but who was not so fortunate in their financial dealings throughout the marriage may conclude their relationship with a very different financial outcome. The same “skill set” applied in the context of that relationship would therefore be irrelevant. To develop an argument ex post facto that a particular set of skills available at the outset of the marriage is the only or major cause of the parties’ later prosperity is to hypothesise a causal relationship which in most cases will be difficult to reconcile or prove.
In that case, the “skill set” which the husband argued he brought to the relationship was questionable. The focus is of course how the skill set was used, and where it is reflected in the acquisition, conservation and improvement of the property of the parties or in indirect contributions.
In most cases the argument is likely to conflate the “special contribution” or beset by the double-count of first skill and second contribution to property. It is part of an argument.
It is important in such cases to consider the particular “skill set” only as context to the financial contribution made by the party. In some cases, it may be that fewer hours at work enabled more contributions at home.
The inverse invites the challenge to the importance of those contributions in light of the other spouse’s contributions as homemaker and parent: Kasiopoulos & Garapiperis (No. 2) [2010] FamCA 1184 at [185] (first instance, undisturbed on appeal).
The problem the husband faces in arguing that his contributions over about 20 years, were greater than those of the wife, is one of time. He is not someone who generated an income out of all proportion to the time he applied to his work. He worked long hours and made a substantial commitment of time to work related travel. He is to be credited with those efforts but they necessarily came at the expense of his availability to the family.
When combining the rationale in cases arriving at equality (or close to equality) of contributions despite the immense income of one party, such as Kasiopoulos, and the consistent stream of cases eschewing “special contributions”, such as Fields & Smith, it seems almost that the jurisprudence borders if not dabbles in the notion that the quantum of one’s income is irrelevant, it is the variety of their contributions that is given weight.
Or simply, did everyone do their role as well as they could?
Does that then mean, in a case with two working spouses, their hours, or “efforts” are taken into account, rather than an assessment of who derived the more income?
Attempts to simplify the holistic assessment
The Court has the discretion to “˜quarantine’ property in the appropriate circumstances, including post separation property. Chan & Chih [2020] FamCAFC 31 the Full Court considered whether a global or asset-by-asset approach was appropriate where each party had inherited property in South Korea.
The husband used the property he had inherited in South Korea to purchase property in Australia, while the wife had not received the property she inherited at the time of trial.
Watts J rejected the husband’s argument that the Court should consider the property as three distinct pools, as the husband’s inherited property had been intermingled with the Australian property, whereas the wife’s inherited property had effectively been quarantined as it had not become available.
Contrastingly, Marcel & Garrigan [2013] FamCAFC 94 at [68]:
Having formulated the main pool, the trial judge identified and analysed the parties’ contributions. Contributions are not tied to assets which exist at the date of hearing and are taken into account in a general sense, including in relation to property that has been disposed of (Farmer & Bramley (2000) FLC 93-060).
It can be all too tempting to attribute percentages to different stages of the relationship or categories of contributions. The Full Court has time and time again warned against such an approach:
Dickons& Dickons [2012] FamCAFC 154 at [26]:
The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
See also: Wallis & Manning, Fields & Smith.
Galliano & Galliano [2011] FamCAFC 149 is a good example of the slippery slope that is attributing percentages at any stage of the process other than on a holistic view. At [67] and [68] Strickland J referred to the submissions on behalf of the husband that the difference in income represented 57% and therefore on that basis alone contributions could not be equal. His Honour said:
The flaw in this approach though is that it has long been held in this Court that “[t]he assessment and comparison of contributions, both financial and non-financial, and the translation of that weighing and comparison is not and cannot generally be a strictly mathematical task” (Z & Z (2005) FLC 93-241 at paragraph 165).
In my view, this case exemplifies why a strict mathematical approach is inappropriate. That approach fails to allow for the proper assessment and comparison of all contributions of the parties, both financial and non-financial, and that is an essential aspect of an appropriate exercise of the broad discretion that the Federal Magistrate undoubtedly had.
The recent case of Vinci & Adamo [2021] FedCFamC1A 53 (Aldridge, Gill and Hartnett JJ) affirms a recent departure from a historic approach of weighting one significant contribution against other contributions. At [21] the Court said:
Such reasoning is entirely orthodox and does not bespeak error. Indeed, had her Honour weighed particular contributions, such as the appellant’s contributions whilst an elected official against all of the other contributions of the parties’, that would have been an error (Dickons v Dickons (2012) 50 Fam LR 244 at [21]; Jabour & Jabour (2019) FLC 93-898 at [73]-[87]; Horrigan & Horrigan [2020] FamCAFC 25 at [42]-[48]; Benson & Drury (2020) FLC 93-998 at [35]).
Another temptation which must be avoided is the comparison of one category of s.79(4) contributions, labelling them as equal and then seeking to disregard them to only focus on the categories which result in disparity. The difficulty arises similarly in the comparison of contributions over the three different stages of the relationship.
The inappropriateness of lending to the temptation is well established. In Samper & Samper [2021] FamCAFC 140 the Full Court observed:
Significantly however as required by established authority (Dickons v Dickons (2012) 50 Fam LR 244; Jabour & Jabour (2019 FLC 93-898 at [73]-[87]; Horrigan & Horrigan [2020] FamCAFC 25 at [42]-[48]; Benson & Drury (2020) FLC 93-998 at [35]), the primary judge placed the post-separation contributions over that six year period in the context of all contributions made over a 32 year period and concluded:
The fact that the parties, quite rightly, agreed that contributions in this 26 year period were equal does not mean that the Court treats these as being mathematically equal and then ignores them when assessing and weighing post separation contributions. To do so would give undue weight to the contributions during the 6 post separation years over the 26 pre-separation years, particularly when the asset pool was largely developed over the period prior to separation. The post separation contributions are to be seen and weighed and as part of the totality.
This is not a mathematical exercise. While on one view [the wife] may have made slightly greater post separation contributions, weighing so far as possible all of the mutual contributions across the 26 years of cohabitation and the various post-separation contributions as set out above, I am not satisfied that there is any basis on which I should find that either party made greater contributions overall.
Accordingly, I find that the parties made equal contributions to the date of hearing.
The primary judge was entitled to so find and gave adequate reasons for doing so.
The parties’ roles
We are seeing more and more courts at first instance placing less weight on significant incomes, by having regard to the parties’ roles during and after the relationship. Kasiopoulos & Garapiperis (No. 2) [2010] FamCA 1184, albeit from over a decade ago, conveniently summarises the point at [185] (first instance, undisturbed on appeal):
The problem the husband faces in arguing that his contributions over about 20 years, were greater than those of the wife, is one of time. He is not someone who generated an income out of all proportion to the time he applied to his work. He worked long hours and made a substantial commitment of time to work related travel. He is to be credited with those efforts but they necessarily came at the expense of his availability to the family.
This can be compared with the notion that parties are entitled to “˜get on with their lives’.
In the appeal of that case, Kasiopoulos & Garapiperis [2012] FamCAFC 85, at [36], the husband argued that:
[He] was free to do with his post separation income as he pleased, provided he was at the same time properly meeting his obligations towards the wife and children. There was no obligation on the Husband in that decision to accumulate assets after separation. It is submitted that in this case, the Husband has in essence accumulated assets after separation from his income by discharging liabilities and increasing his superannuation and therefore he should be given credit for this in any assessment of contributions.
The wife argued that the bonus the husband received post separation resulted from his qualifications acquired during the 20-year relationship.
The Full Court said at [43]:
… Neither in Gollings (supra) nor any provision of the Act, or other authority to which we have been referred, do we discern support for the proposition that, once a party has provided adequately for the other party and/or children of the marriage in the post-separation period, the fruits of any acquisition, conservation or improvement of further property in that period are necessarily to be regarded as exclusively, or overwhelmingly, the entitlement of that party. A Court may so conclude in an appropriate case, but so doing does not establish any “principle” to that effect.
The non-financial party argues that it is really business as usual – one works in the environment established during the relationship and one takes on the homemaker and parent roles as during the relationship.
Even if the range is known, every family lawyer knows that a judicial determination will depend on the trial judge. We all know there are certain judges who tend to conclude matters in one favour and others who take the opposite approach. The Full Court acknowledges that is OK as long as both judges are within Range.
In my view, the Honourable Paul Cronin often gave significant consideration to the concept that the parties had “˜roles’.
Vasilias & Vasilias was a first instance decision of Cronin J in 2008.[5] The poor state of the evidence informed the outcome.
The husband was a taxi driver. He worked from early morning to late at night. He used his “˜tradesmen-like talents’ on and around the home and to maintain the parties’ cars.
The wife undertook the traditional homemaker and parenting role. Having regard to the limited time available to the husband to contribute “˜at home’, the wife’s role was taken to be significant.
On the husband’s part, he argued the wife spent an exorbitant amount of time on the telephone and in so doing, neglected her role as homemaker. He adduced photographs of the state of the home the day after separation. The wife looked at the photographs and when asked to describe the condition of the home, she described it as “disgusting”. His Honour made some important comments:
… cobwebs on windows, dirty bathroom basins and untidy floors and laundries are not matters about which this Court should be unduly critical. This is a very subjective area into which judges should be cautious about treading. The quality of a homemaker role is an issue of contribution about which an assessment has to be made and weight given. However, over a period of the length of a relationship such as this with all of its incumbent problems, in my view, it is dangerous to draw broad assertions from a series of photographs even if they did depict a home that was “disgusting”. Contrary to the assertion that this was consistent with her behaviour and effort all of the time, the wife maintained that she was a very proud homemaker. There is no evidence that the children were adversely affected by it and certainly no evidence that it in someway diminished the value of any property.
In a case in which the husband has worked extraordinarily long hours to earn a limited amount of income, it is difficult to make an assessment as to whether that absence from home contributed to what might otherwise attract criticism for the homemaking role of the wife. In my view, that comparison would be completely inappropriate.
In the circumstances, I do not propose to distinguish between the husband and the wife in respect of the period of time that they were together during the marriage.
Then, turning to post separation matters:
Contributions do not cease when the relationship comes to an end. Parties contribute in their own ways subsequent to that time. In this case, the wife took on the very significant role of the care of the children which she had clearly done well during the relationship itself. Her role was not made any easier by a number of matters about which I have already criticised the husband … Most significantly, subsequent to separation, the husband has contributed very little by way of financial support for the children albeit that he has contributed to the mortgage. In so doing however, he has clearly protected his own financial position.
The issue of disparate early contributions was also relevant. The husband’s parents gave him money towards the purchase of the family home. a considerable argument about whether the advance was a gift or loan was resolved by the husband’s father’s evidence in cross examination that he did not require the loan to be repaid. Cronin J accepted the advance as a contribution by the husband.
After referring to Lee Steere, Way & Way and Pierce & Pierce, his Honour held that:
162 … Even if there was a contribution by one party greater than the other, it has to be weighed against the subsequent contributions over a period of many years in which both parties worked and/or raised their family. …
Post separation income
One of the plights of the s.79 process can be identifying and giving weight to post separation income and expenditure, and more intricately, at what stage of the process that consideration is given.
Income earned since separation is relevant in several distinct, and not so distinct, ways. For example:
In identifying the property of the parties and any relevant liabilities;
As a direct contribution; or
As evidence of a parties’ current and future financial circumstances (75(2)(b)).
There are important subcategories.
Post separation income could manifest as savings sought to be “˜excluded’ from the pool. Expenditure could be sought to be added-back.
A post separation contribution can be easy to identify, but it is much more difficult to support arguments for the weight to be attached to it.
Expenditure could be framed, not as a negative contribution, but through context of the other party’s contribution to the conservation of property, for example. Simply put, one party spends while the other doesn’t. Attracting any weight to that argument can be difficult. That may always have been the pattern. Is it the pattern or a change that matters?
Greater post separation income cannot be its own reward by attracting little weight as a contribution and supporting an argument for a greater adjustment on account of income disparity.
In some cases, parties continue their pre-separation roles in their post-separation lives. This continuation of roles was an integral consideration in Trask & Westlake, where the Full Court heard an appeal against property adjustment orders made by Aldridge J. The parties’ marriage was a traditional one – the husband zealously pursued his career, and the wife was the homemaker and primary carer of the children. Although university educated, the wife had never been employed on a full-time basis and would need extensive training to enter the workforce.
The parties continued their roles post-separation – the husband’s income increased by way of his employment, while the wife’s role as primary carer became more difficult due to the separation.
The husband argued that Aldridge J attributed excess weight to the non-financial post-separation contributions of the wife.
The Full Court said at [14] – [15]:
The husband’s written outline of argument calculates the percentage of the total value of the property represented by the husband’s post-separation cash injections. That can be a useful measuring stick, but the assessment of contributions remains “a matter of judgment and not of computation” (In the Marriage of Garrett (1984) FLC 91-539 at 79,372). That it must be so is emphasised by the fact that the percentage figure pertaining to direct financial contributions is being compared to the extremely important contributions made by the wife in maintaining a home as a single parent to four children dealing with the separation of their parents. Those contributions are not susceptible to any such mathematical calculation. His Honour plainly, and with respect correctly, recognised that the wife’s contributions did not cease upon separation but, rather, continued in circumstances made more difficult by the fact of separation. His Honour plainly accorded significant weight to those contributions.
Central to his Honour’s assessment of the parties’ respective post-separation contributions are the findings to the effect that the husband had arrived at his position with Company E by dint of his talents, dedication and hard work but also by dint of the contributions made by the wife across the years preceding that employment. The years of cohabitation had embraced roles for the parties agreed between them that had led them to the point where one of them, the husband, received tangible recognition of, as his Honour put it, the “experience, knowledge and opportunities he had obtained in his earlier employment” (at [84]). The contributions of the wife are much less tangible. The lack of tangible recognition, or the fact that they are not susceptible to a dollar calculation, does not render them less important.
The Full Court allowed the husband’s appeal on the basis that the original orders did not reflect the judgment that had been given. Crucially, the husband’s increase in income did not alter the Court’s consideration of the contributions-based assessment.
This jurisprudence can interestingly be compared with the Full Court’s approach to windfall increases in the value of property.
In Jabour & Jabour [2019] FamCAFC 78 the Full Court famously said at [43]:
We consider that the decisions in Baker and Bilous indicate that the Court in Williams somewhat overstated the importance of the increase in value of a piece of property at the expense of “the myriad of other contributions that each of the parties has made during the course of the relationship” (Williams at [26]).
And then at [55]:
Again, consistent with the authorities set out above and those which we discuss below, the import of Pierce is that the weight to be attached to an initial contribution must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship.
Concluding at [73]:
As can be seen the primary judge weighed the myriad of contributions made by the parties against the contribution made by the husband by bringing in Property A rather than treating Property A as one of the myriad of the contributions made.
Savings generated by post-separation income which comprise a substantial part of the pool are often not given weight on account of other circumstances.
In Teal & Teal [2010] FamCAFC 120 the husband’s post-separation savings comprised 21% of the non-superannuation assets. However, the Court considered that against the benefit of the wife’s employment reducing the children’s school fees by 90%. But for the wife’s contribution reducing the parties’ expenses, the husband would have been unable to save as much as he did post-separation.
That case involved a unique contribution which explicitly offset the post separation savings. It does communicate the idea though that even post separation the parties may still be contributing in their own way and one way is no better than another.
In other cases, one party has continued to benefit post-separation while leaving the other to fend for themselves.
The cases of Gollings & Scott [2007] FamCA 397 (at [68]) and C & C [1998] FamCA 143 are often used to support arguments that parties are entitled to use post separation income as they see fit.
The Full Court considered the weight to be attributed to contributions in those circumstances
In Rankin & Rankin [2017] FamCAFC 29, the Full Court considered an appeal against, inter alia, the treatment of the husband’s post separation income which was largely spent on legal fees. This case emphasises the flexibility for courts dealing with post separation income.
The primary judge’s relevant reasons are set out by the Full Court at [54]:
In view of these passages, the primary judge concluded:
There is no dispute that the funds used by the husband to pay his legal fees have been generated by him after separation from his employment as a [professional]. It is submitted on behalf of the wife that she has made contributions to the development of the husband’s career; she has supported him in the early years of his practice when he was establishing himself as a [professional]. Otherwise, it is submitted on her behalf that she has been the primary care-giver to the parties’ children and principally responsible for maintaining the home; in this way she provided invaluable support to the husband in the progression of his career and development of his capacity to earn income. I accept those submissions.
At the time the husband earned the income applied to the payment of his legal fees, he had an obligation to support the wife and the children of the marriage. That this is so is evident from the orders dated 4 November 2013 which required him to meet mortgage payments and outgoings with respect to the properties in Western Australia and [Suburb C].
As noted earlier, the husband did not service the mortgage liabilities on the parties’ properties, thereby increasing the debt payable upon settlement of the sales of those properties. Further he substantially reduced his child support liability by providing an estimate of his income to the Child Support Registrar which substantially reduced his obligation to pay child support. Income which otherwise would have been available to support the wife and the children was applied to the payment of his legal fees. The husband has effectively executed self-help with respect to his legal costs and in doing so has disregarded his obligations to meet liabilities pursuant to orders of this Court and in accordance with the Child Support (Assessment) Act 1989 (Cth). (emphasis added)
Such matters may be taken into account pursuant to the provisions of s. 75(2)(o) of the Family Law Act. However, in my view a percentage adjustment will not achieve justice and equity in the overall context of this case in circumstances where:-
the asset pool excluding superannuation is only $803,000;
the husband has paid $230,000 to his lawyers in preference to his obligations to the wife and the children; and
such payment has been made from income which he has been able to earn, in part, through the contributions of the wife.
Having regard to those circumstances, I am satisfied that justice and equity require that there be a cash adjustment in favour of the wife with respect to her outstanding legal costs prior to the disbursement of the sale proceeds rather than a percentage adjustment in her favour.
The husband accepted that “income which otherwise would have been available to support the wife and the children was applied to the payment of his legal fees”.
The Full Court proceeded to affirm the approach taken by the trial judge, acknowledging that considering the s.75(2)(o) adjustment as a lump sum was appropriate, but eschewed the comment that a percentage adjustment was inappropriate “if correctly calculated”.
The husband argued that the primary judge did not take into account money paid post separation, which “he was entitled to spend as he saw fit”.
The Full Court observed:
… In support of this submission, the husband referred to Beklar & Beklar [2013] FamCA 327. In that case the primary judge “added back” into the property pool payments made to a party’s lawyer, but, recognising that the payments had been made from post”‘separation income, the amounts added back were reduced by 50 per cent.
That case is, of course, an example of the flexibility of approach required in complex financial cases where the orders must be adapted to the particular facts of the matter before the court. It is not, and did not purport to be, a statement of general principle, as counsel for the husband properly conceded.
In the unique circumstances of this case and having regard to the husband’s evidence and her Honour’s unchallenged findings, the primary judge could have followed such a course. However, the relevant enquiry is whether the primary judge was in error in taking into account the whole of the $230,000. It is apparent from what we have already said that we do not consider that there was such an error. In particular, the findings made by the primary judge at [136] – [138], which were unchallenged, support her approach.
In some cases, it is not the treatment of post-separation income, which is the subject of dispute, but the taxation liability remaining at the time of trial.
The Full Court considered the treatment of pre- and post-separation taxation debts in Zabarac & Zabarac & Anor [2016] FamCAFC 186.
The Full Court said at [176] – [184]:
Ground 14 contends that her Honour ought to have found that the wife continued to enjoy the benefits of the husband’s post separation income and thus should have been required to share jointly in the 2012 tax debts.
Her Honour said:
In my view, justice between the parties dictates that separate consideration is given to the pre- and post-separation taxation debts. In her oral evidence the wife conceded that she “liaised with our accountants and lawyers“ and that she “had [her] finger on the pulse in relation to our money“ prior to the separation. By contrast, the husband thereafter caused the incorporation of the company [SY Pty Limited] and channelled his income into that entity without any input at all from the wife.
(Emphasis in original)
Before moving to the thrust of this ground, her Honour’s reasons clearly indicate why she chose to treat the pre and post separation tax debts differently.
In support of this ground it was argued that her Honour failed to take into account the husband’s evidence that his post separation income had been applied to benefit the wife, children and in maintaining the parties’ properties (husband’s written summary of argument at [14.2]).
Further it was argued that her Honour failed to give proper weight to the wife’s agreement that after separation the husband paid her periodic sums of $13,303 per month, reduced later to $10,000 per month, and that the husband’s income received from LBP was applied to the purchase of the Suburb R property, the value of which was included in the balance sheet of the parties’ assets.
For the wife it was submitted that before the husband incorporated SY Pty Ltd his income was paid into the Trust from which both the husband and wife jointly benefitted.
Clearly her Honour’s distinction between the wife’s capacity to control or exercise control over the parties’ finances before separation and the husband’s election to refocus the channel for his income to a separate corporation justified both her treatment of the tax debts and her conclusion that post separation tax debts should rest with the husband.
That the husband attended to his obligations to provide financial support to his children and the wife does not, in our view, support this ground.
There is no substance in this challenge and it is not made out.
Post separation “˜excessive’ expenditure
It is commonly the duty of a family lawyer to explain to their client why the so-called “excessive” expenditure of their spouse is unlikely to attract any real weight in the section 79 process.
Family lawyers often seek to exclude assets or liabilities from, or add-back notional assets to, the balance sheet because doing so enhances the chances of extra weight being attached to the particular circumstance. They forefront issues as advocates.
The alternative is to have it considered as either a contribution or a section 75(2) matter, the concern being that both of which are easily devalued or even lost altogether in the sea of the myriad of contributions.
It is for that reason that expenditure is rarely sought to be taken into account under s.75(2)(o) by the party alleging profligate spending.
Manipulating the balance sheet is desirable because it secures consideration of an aspect of the case. That is arguably applying a mathematical approach to what must be a holistic assessment. However, as we are reminded time and time again, it is not improper in the appropriate cases: Trevi.
It is, however, important to acknowledge the impact of manipulating the balance sheet, because it is the reason only the exceptional cases are adopted by the courts.
The high threshold of establishing a party’s profligate spending besets the frugal spouse. Some level of hobby spending might be appropriate or at least accepted as not being waste.
The party asserting wastage on part of the other invites application of scrutiny to their own affairs. The courts will often reject an argument of wastage on the basis that both parties made less than prudent decisions concerning their property or finances.[6]
In Murray & Murray [2020] FamCAFC 293 the Full Court considered an argument that credit card debts of $78,000 were inappropriately omitted from the balance sheet by the primary judge. The husband had previously earned a consistently high income of approximately $800,000 to $1,100,000. After separation he suffered a significant reduction in his income. Despite his reduced income, he did not curb his expenditure and amassed a large debt. In cross-examination he said he conceded that his lifestyle had not changed “all that much”. The primary judge omitted the debts from the balance sheet because they were incurred “in order to maintain [his] lifestyle”. The Full Court held that the primary judge was within discretion to ignore the debts “in accordance with the Biltoft guidelines”: ([31] to [41]).
The principle against a presumption of equality is clear. It is perhaps due to the overwhelming amount of cases in which equality is the appropriate conclusion that the annunciation of the principle is required. In Elgin & Elgin [2014] FamCA 10 (first instance, undisturbed on appeal) Forrest J said:
Although I am quite conscious of the clear authoritative rejection of the existence of a presumption of equality as a starting point in the assessment of contributions in this discretionary exercise, I am equally conscious of the authoritative pronouncement of the following propositions that go to informing the discretion (whether they are correctly described as “values” or otherwise):
contributions by a spouse to the welfare of the family, including as a homemaker and a parent, should be recognized in a substantial and not merely in a token way;
no nexus between a spouse’s contribution and a specific item of property is required when the parties’ contributions are being considered; and
marriage is and should be regarded as a genuine partnership to which each party brings different gifts and when one party’s efforts produce great wealth that is no reason, in itself, to disadvantage the other party.
Having regard to these propositions, I respectfully agree with the view expressed by my judicial colleague, Cronin J, in Bulleen & Bulleen (2010) 43 Fam LR 489 that to retrospectively distinguish between the value of the roles respectively adopted by the parties in the course of a very long marriage, who saw themselves as equals, merging their lives and each contributing to their common goals to the best of their abilities, is something fraught with the risk of injustice.
In the same vein, I also agree with the submission of counsel for the Wife that to consider a party’s contributions to the welfare of the family as of diminished significance in a long marriage where the children who that party principally parented have long grown up and left home is contrary to community expectations and also likely to be productive of injustice. The obligation to recognize contributions to the welfare of the family in a substantial and not token way, without having to link them to particular property amassed by the couple, provides principled foundation, in my view, to the attribution of weight to the “fantastic” and “terrific” contributions made by the Wife to the welfare of the family, including as a homemaker and parent over 30 years, and as a homemaker on an ongoing basis to the point of separation after 49 years, so as to arrive at a determination that the contributions of both parties made in their respective roles weigh relatively equally, even where the Husband has continued to generate further wealth by his own contributions after the children have grown up.
If the Court does not accept that property provided to a party constitutes a loan, the Court will in the ordinary course of events consider the property a contribution: Vass & Vass [2015] FamCAFC 51 at [119] citing Kessey & Kessey (1994) FLC 92-495 at 81,150.
Then there is the debt that may never have to be repaid. Where an unsecured liability is vague or uncertain, or unlikely to be enforced, the Court may determine not to take it into account: Biltoft
Rent vs mortgage repayments
Another common argument between parties is the discrepancy in living situations post-separation where one party remains in the family home and the other must find and pay for temporary or rental accommodation.
Who pays the mortgage?
In some cases the financial spouse moves out but continues to meet all or some of the mortgage repayments. This is often treated as a contribution, but in all of the circumstances, seen as the continuation of pre-existing roles.
Defraying the costs of the mortgage can often be seen as asset preservation and credit rating preservation.
Paying the costs of rent, with the care of a child, is often seen as a contribution in its own right but also an indirect contribution to the mortgage repayments in all the circumstances.
In Meadows & Meadows (No 3) [2020] FamCAFC 124 the husband occupied the home post separation. The wife rented. She argued[7] that there ought to be a capitalisation of the benefit of the husband remaining in the home with regard to the estimate of rent he otherwise would have paid. The trial judge appropriately refused to identify a capitalise rental benefit, acknowledging it was properly a matter for contributions.
As to the assessment of contributions by the trial judge, the Full Court said:[8]
Having discussed the parties contributions during the marriage, including the mother’s contribution as primary carer of the child and accepting her contention that the father had the benefit of occupation of the former marital home, albeit paying the mortgage, whereas she and for significant time the child, were living elsewhere paying rent. His Honour took into account the relative disparities in the parties’ income and earning capacities. He concluded that the mother’s contribution based entitlements were slightly greater than those of the father and assessed them at 55 per cent in favour of the mother.
The wife complained that the trial judge gave insufficient weight to the disparate living situation.
The Full Court then concluded:[9]
His Honour took the father’s occupation into account and considered it to be an indirect contribution by the mother, albeit noting that the father’s occupation included payment of the mortgage, rates and taxes on the property (at [87(f)]). No error has been established.
Contributions and adjustments in elder divorce
The median age of divorcees in Australia has risen sharply, from 34 years old in 1990 to 45.6 years old in 2020.[10] The rise of the so called “˜grey divorce’ phenomenon raises numerous questions regarding the application of section 75(2) for elderly parties.
The Court will consider the “˜future needs’ of each party, and has the discretion to determine how much weight will be placed upon the relevant considerations.
The section 75(2) considerations of particular relevance for the Court when assessing the parties’ future needs in elder divorce cases are:
Their age and health;
Their income and capacity for appropriate gainful employment;
Their eligibility for a pension, allowance or benefit;
A standard of living that in all the circumstances is reasonable;
The duration of the marriage and the extent to which is has affected the earning capacity of the party whose maintenance in under consideration;
The relevant section 75(2) considerations can be contradicted by an elderly party’s life expectancy. A shortened life expectancy effectively reduces the future needs of that party. Adducing persuasive evidence of that fact may be challenging.
If a party is elderly and unwell, their future medical needs will increase, even if that increase coincides with a reduction of the life expectancy of the party.
The Full Court in Varnham & Moses [2020] FamCA 83 considered the assessment of post-separation contributions and the approach to address the relevant section75(2) factors in the property settlement of an elderly couple.
At [48] – [60]:
The 60 per cent contribution-based entitlement of the wife determined by the primary judge represented, in money terms, $1,683,837.60 as compared to the husband’s 40 per cent entitlement worth $1,122,558.40.
The primary judge did not have regard to that as a starting point when assessing the s 75(2) factors. Her Honour’s consideration of s 75(2)(b) “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment” in respect of the wife appears to be confined to her existing property interests (at [191]) and her employability (at [198]-[201]). Moreover, s 75(2)(n)(i) mandates that account be taken of “the terms of any order made or proposed to be made under section 79 in relation to … the property of the parties”. That factor was not identified or addressed by the primary judge in her Honour’s listing of the factors her Honour considered to be relevant.
The primary judge erred in failing to consider, for example, potential income to the wife, or the financial resource of the investment of capital consequent upon the 60 per cent the wife was to receive, as compared with the husband’s position and his 40 per cent entitlement, given also that her Honour did not propose to make any splitting order with respect to the husband’s superannuation.
These errors also manifest themselves in the conclusion the primary judge expressed at [217] as follows:
Taking those matters into account an adjustment in favour of the wife is appropriate in circumstances where her earning capacity and access to superannuation is much less, by a factor of 10 percent.
(Emphasis added)
The property pool determined by the primary judge (at [143]) included the wife’s superannuation of $31,000 and the husband’s superannuation interests totalling $542,386. All of the parties’ superannuation interests were accounted for. On a 60 per cent/40 per cent contribution assessment overall the wife was obviously to receive the equivalent of 60 per cent of the parties’ combined superannuation. In circumstances where the primary judge did not propose to make any splitting order with respect to the husband’s superannuation, the wife was already to receive, wholly by way of non-superannuation capital, the majority of the value of the parties’ combined superannuation.
The primary judge’s reference then in [217] to the wife’s “access to superannuation is much less” as part of the foundation for a further 10 per cent adjustment in the wife’s favour for s 75(2) factors is an obvious error.
We have considered whether the primary judge’s error with respect to superannuation is capable of being characterised as immaterial on the basis that the primary judge’s 10 per cent adjustment for s 75(2) factors is supportable by reference to only the disparity between the parties’ respective earning capacities as discussed by the primary judge.
However, a 10 per cent adjustment for s 75(2) factors gives rise to a 20 per cent disparity between the parties worth, in money terms, $561,279.20.
As at trial in July 2019 the husband was soon to turn 61 years of age and whilst he was then unemployed his evidence was that he was actively seeking employment and, if successful, he intended to work “for two or three years at the maximum” before retiring (husband’s affidavit filed 5 June 2019, paragraphs 398-399). There was no challenge in the course of the husband’s extensive cross-examination at trial as to his stated intention in this respect. That is perhaps unsurprising given the husband’s age and the feature that as at trial the wife, at age 58 years, already regarded herself as retired as found by the primary judge (at [201]).
For the purposes of making some comparison, it is notable that the primary judge recorded:
The husband received a substantial redundancy package (AUD$529,000) equivalent to three years employment, paid to him in June 2017.
(Emphasis added)
On that comparison, the disparity of $561,279.20 is a present capital sum greater than the redundancy package the husband historically received calculated by reference to three years of his employment.
Self-evidently the disparity amount exceeds the entirety of the husband’s probable (or possible) total net (after tax) earnings for the anticipated balance of his notional working life. Viewed another way, the husband would have to work for many more than three years to ever have any prospect of accumulating an amount of capital approaching that magnitude and there was no evidentiary basis for such a conclusion. As noted, the unchallenged evidence of the husband was that he would work for a further period of two or three years before retiring.
It is well settled that the primary judge was obliged to analyse the effect of any further adjustment for s 75(2) factors in real money terms (Clauson and Clauson (1995) FLC 92-595; Steinbrenner & Steinbrenner [2008] FamCAFC 193; Phipson & Phipson [2009] FamCAFC 28; Wayne & Wayne [2010] FamCAFC 33 at [106]; Lovine & Connor (2012) FLC 93-515 at [80]). We are satisfied that the primary judge failed to so do and that error vitiates the exercise of discretion.
In Trevi & Trevi [2019] FamCAFC 51, the Full Court considered a section 75(2) percentage adjustment, where the husband earned $30,000 per week and intended to soon retire and the wife had minimal income capacity.
[45]:
Noting that, as has often been said, there is considerable overlap in the applicability of s 75(2)’s sub-paragraphs, her Honour’s findings referenced to the relevant sub-paragraphs of s 75(2) are as follows:
…
s 75(2)(b)
“There is a large disparity in income between the parties. The husband’s total average weekly income in accordance with his latest financial statement is $29,980 and his total weekly personal expenditure is $26,189″ (at [52]).
“The wife’s average weekly income in accordance with her latest financial statement is estimated at $317 and her total weekly personal expenditure is estimated at $2,835″ (at [53]).
“The wife is now living in an unencumbered property valued at approximately $2,480,000 purchased from her part property settlement and the husband is living in an unencumbered property valued at $2,700,000 which was purchased during the marriage…” (at [396]).
“There is a significant disparity of income earning capacity between the parties” (at [400]).
“The husband’s income is significant and for the year ended 30 June 2015 it was $1.54 million. In contrast the wife is studying and without paid employment. She is depleting her capital to pay living expenses. She has a nominal income earning capacity” (at [401]).
“…The wife will take some time to complete her studies and having regard to her age and lack of experience in the workforce, her employment prospects and potential for remuneration are limited” (at [402]).
“I accept the submission on behalf of the husband that it cannot be assumed that he will still be earning at his current level in seven years’ time. Having regard to his highly demanding position and competitive work environment, I accept the argument that a prospective assessment on the assumption of future earnings at this level can be no greater than four to five more years…” (at [403]).
“At the conclusion of the trial the parties reached an agreement on this issue and the expert witnesses were not required for cross examination. The agreement reached was that on an invested sum of $1.5 million that the wife would receive a return on that investment of between $50,250, which equates to 3.35% per annum and $141,873, which equates to 9.5% per annum” (footnote omitted) (at [406]).
“The significance that I should attach to this evidence was never explained” (at [407]).
“The husband’s income as a partner is approximately $1,196,416 per annum. As an equity partner, the husband’s remuneration depends upon his performance which is linked to the profitability of the practice. His work environment is competitive and demanding. However it was conceded in closing submissions, that it could be assumed that his income is likely to remain the same for a period of between two to four years. I accept that proposition as reasonable given that his income might decrease or increase” (at [427]).
“The husband also receives rental income from the investment properties which on his financial statement amounts to approximately $239,824 per annum. His weekly income is $29,980 and his weekly personal expenditure is $26,189. He has funds in his bank account of approximately $449,705 and he has superannuation of approximately $473,071 which includes his benefit under the [Trevi] Family Superannuation Fund” (at [428]).
“The wife’s income is approximately $317 per week but this is dependent upon her savings. According to her financial statement filed 28 April 2016 her weekly personal expenditure is $2,835 and her funds in her bank account are $215,228. The wife has superannuation of approximately $77,352 including her benefit in the [Trevi] Family Superannuation Fund” (at [429]).
“I am satisfied that in the years remaining of his working life, the husband is likely to continue to earn a significantly greater income than the wife” (at [430]).
“The wife ascribed a value of $2,250,000 to the husband’s potential [N Lawyers] Early Retirement Scheme entitlement in her balance sheet (Exhibit 11) but ultimately accepted the husband’s evidence that he was not “˜counting’ on getting money from the scheme and his evidence that “˜if I need another million dollars I will just work for another year’. Her case is that this should not be ignored. However I find that the husband is proposing to work for another five to seven years” (footnote omitted) (at [433]).
“I find that for the purposes of considering s 75(2) factors that the husband’s present income cannot be assumed for any longer than four to five years” (at [437]).
“[The husband] … intends to continue to work for the next five to seven years but obviously this cannot be guaranteed” (at [4]).
“I also find on the joint expert evidence of the chartered accountants, which was accepted by the parties, that if the wife received an amount of $1.5 million and invested that sum, that she would be likely to receive a return on that investment of between $50,250 which equates to 3.35% per annum and $141,873 which equates to 9.5% per annum” (footnote omitted) (at [438]).
[56]:
Weighing all of her Honour’s findings and all of the matters to which I have just referred, I assess the s 75(2) factors as weighing significantly in favour of the wife receiving a significant sum. I have given very significant weight to the disparity in income and income earning capacity seen in light of the parties’ respective ages.
Colleagues, once more into the fray. No doubt there are experiences of trial decisions that stick with each of us. I always remember the wife arguing the husband spending about $18,000 a year on gambling was wastage. The trial judge thought it was a reasonable hobby spent in proportion to his income. I was relieved to hear that.
[1] [2017] FamCAFC 14 at [116].
[2] [2017] FamCAFC 14 at [117].
[3] Kane & Kane (2013) FLC 93-569; Hoffman & Hoffman (2014) FLC 93-591; Fields & Smith (2015) FLC 93-638.
[4] Doolan & Doolan (20 November 2003) [2003] FamCA 1356, cited in Grier & Malphas [2016] FamCAFC 84 at [90].
[5] [2008] FamCA 34.
[6] For example Walters & Carson [2018] FamCAFC 233 at 111 (citing the trial judge’s undisturbed reasons).
[7] Meadows & Meadows (No 3) [2020] FamCAFC 124 [143].
[8] Meadows & Meadows (No 3) [2020] FamCAFC 124 [128].
[9] Meadows & Meadows (No 3) [2020] FamCAFC 124 [152].
Application for review of a Registrar’s decision: The cooling off period inherent in an Application for Consent Orders
By Charles Letts, Senior Associate, and David Marcolin, Associate
As many practitioners in family law would be aware, the family law legislation provides that decisions made by Registrars of the Federal Circuit and Family Court of Australia can be reviewed by a Judge upon the application of one or both of the parties within a specified time limit.
A decision of a Registrar will be either an “administrative” or a “judicial” decision. The type of decision is critical to the nature of the review process.[1] This article focuses only on judicial decisions.
The review by a Judge of a judicial decision made by a Registrar is conducted as an original hearing[2], also described as a hearing de novo, which importantly is very different from an appeal.
Most family law practitioners would understand that the vast majority of Orders made following an Application for Consent Orders being filed are being made by Registrars of the Court.
The implications of this, however, especially when considering the recent Full Court decision of Mirren[3], do not seem to be widely discussed or taken into consideration in general practice.
In Mirren, the Full Court conducted an analysis of the operation of the legislation relating to a review of a Registrar’s decision in circumstances where Orders were made by consent.
Ultimately, the Court held that in circumstances where an Order has been made by a Registrar with the consent of the parties, should one or both of the parties file an application for review of that decision and in doing so withdraw their consent to the initial consent Orders, then as the review by a Judge of the Registrar’s decision proceeds by way of a hearing de novo the only possible outcome is that the initial consent Order cannot be made due to a lack of consent.
The Court’s approach in Mirren and the current legislation creates a situation whereby any Order made by consent by a Registrar effectively contains an inherent “cooling off” period that lasts until the time limit for the filing of a review of a Registrar’s decision passes. That time limit is currently 21 days[4] from when the order or decision is made.
It would appear that as the law stands currently, parties to any Order made by a Registrar following an Application for Consent Orders being filed (or in any other circumstances where a Registrar is making the Orders on a consent basis) can effectively have that Order set aside by, within the prescribed time limit, filing an application for review of a Registrar’s decision and including that they withdraw their consent to those Orders being made in their affidavit evidence in support of such application.
Consent Orders made by a Judge, of course, do not have such an inherent “cooling off” period.
This has significant implications for Orders made following an Application for Consent Orders being filed given that the vast majority of such Applications for Consent Orders are dealt with by Registrars, and a significant proportion of consent agreements reached through dispute resolution outside of the Court process are formalised through the filing of an Application for Consent Orders. Agreements reached after a court-based dispute resolution process also generally result in Consent Orders made by Registrars.
Significant issues could arise in such circumstances where consent Orders require parties to take steps prior to the time limit for an application for a review of the Registrar’s decision elapsing, given that doing so potentially leaves a party open to acting in accordance with the initial consent Order and later being disadvantaged as a result of an application for review being filed and being left in a position where no Order later exists.
As such, we would recommend that all practitioners advise their clients prior to them entering into any Consent Orders of the risks that may arise as a result of the review process.
It may also be prudent to, whenever possible, draft Orders such that the parties are only required to implement the requirements of the Orders following the review time period elapsing. This would ensure, as much as possible, that parties to the Orders are protected against the other party either entering into the consent Orders in bad faith or resiling from their agreed position following either party taking steps to comply with the Orders made by a Registrar.
Should an Order need to be made that requires the parties to take steps prior to the elapsing of the review period, consideration should be given as to how to best protect against that review period causing issues. Options that come to mind potentially include filing the Application for Consent Orders in a state Court (where the decision as to whether to make the Orders or not is generally made by a judicial officer rather than a Registrar and therefore not subject to the same review time periods), the use of a Financial Agreement (which of course brings its own complexities and difficulties to the table) or potentially filing an Initiating Application in the Federal Circuit and Family Court of Australia and thereafter seeking to have Orders by consent made in chambers by a Judge. The same request could accompany an Application for Consent Orders.[5]
Of course, this issue is unlikely to be a problem (or can be appropriately worked around) in the vast majority of matters, however, it is important to keep these issues in mind in relevant cases.
It also appears that, with the court’s move towards a more Registrar-based case management program, many Consent Orders that would previously have been made by a Judge are now likely to be made by a Registrar (such as, for example, when parties settle at or before the first return date), potentially increasing the scope for this review period to be an issue.
It should also be noted that the Court has the power to extend the time limit for a review of a Registrars decision. That process is beyond the scope of this article, but our firm was recently successful in obtaining, on behalf of our client, such an extension following the making of Consent Orders.
Following the Full Court’s approach in Mirren, therefore, the Court, upon granting the extension of time and allowing the application for review of a Registrars decision, had no option but to decide not to make the initial Consent Orders given our client had withdrawn their consent to those Orders.
Whilst this application was made in unusual circumstances where we consider that it would have potentially also have been possible for our client to succeed in having the Orders overturned by way of an application pursuant to section 79A of the Family Law Act, it would appear to be important to advise clients of the potential for such an application for review to be made outside the time limit, especially if the proposed consent Orders could be seen to perpetuate an injustice.[6]
Charles Letts, Senior Associate, and David Marcolin, Associate.
For further information about this issue, or family law matters generally, please do not hesitate to contact us here at Feeney Family Law.
Feeney Family Law
[1] See Valack & Valack [2020] FCCA 1354 and Valack & Valack (No.2) FCCA [2020] for an example of the consequences of conflation of the two types of decisions.
[2] r14.07(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
[3] Mirren & Mirren [2020] FamCAFC 94
[4] r14.05(1), r14.05(2) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
[5] r10.07(4) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
[6] In Mirren, for example, the Family Court granted an application for an extension of time in which to file the review application brought some six years after the orders were made. That decision was undisturbed on appeal.
Understanding and Navigating Informed Consent for Children and Parents
By Kay Feeney
Why is consent important?
Consent is the legal mechanism by which acts that could, at law, be assault or trespass become legal. The required standard is informed consent.
A person has to have information to be able to give informed consent.
As a lawyer in Australia, a good place to start is always with the High Court of Australia.
In Rogers & Whitaker [1992] HCA 58, the High Court applied the statement of King CJ from the Judgment of the Supreme Court of Canada in Reibl v. Hughes ((30) (1980) 114 DLR (3d), at p 13):
“What is under consideration here is the patient’s right to know what risks are involved in undergoing or foregoing certain surgery or other treatment.”
The High Court said of that:
“In our view, it is correct”.
The Court determined:
“There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient’s contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it. In legal terms, the patient’s consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended” ((33) Chatterton v. Gerson (1981) QB 432, at p 443).
The Court went on:
“But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession.” (emphasis added)
The Court went on:
“… whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices.”
…
“Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient’s apprehended capacity to understand that information.”
The Court went on:
“Consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed“ ((37) Chatterton v. Gerson (1981) QB, at p 443). (emphasis added).
“In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term “˜informed consent'” ((38) (1980) 114 DLR (3d), at pp 8-11).
The High Court agreed that the factors referred to in F v R by King CJ ((39) (1983) 33 SASR, at pp 192-193):
“…must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege.”
This is how the High Court dealt with the Appellant’s argument on the issue of breach of duty.
By majority, Mason CJ, Brennan, Dawson, Toohey and McHugh JJ dismissed the appeal.
Gaudron J said:
“I see no basis for treating the doctor’s duty to warn of risks (whether involved in the treatment or procedures proposed or otherwise attending the patient’s condition or circumstances) as different in nature or degree from any other duty to warn of real and foreseeable risks.”
The appeal was unsuccessful.
Can children consent?
Two important legal concepts in considering the issue of consent and children are the concept of the Gillick competence and the concept of the parens patriae jurisdiction.
The term developed as a result of an English case of Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112. The Court, in that case, had to consider whether a doctor who prescribed contraception to a girl under the age of 16 years had committed an offence under legislation similar to sections of the Queensland Criminal Code. The doctor had in fact been charged with encouraging intercourse with a girl under 16 years and aiding and abetting unlawful sexual intercourse.
In that case, the Court decided that provided the child was sufficiently mature to weigh the advantages and disadvantages of the treatment, the absence of any parental consent did not render the doctor’s conduct unlawful. While not binding on Australian Courts, the concept has been very significant in the development of matters relating to medical treatment involving children in the latter part of their adolescence.
In Australia, at common law, a minor, that is a person under the age of 18, is considered to be capable of consenting to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed.
The High Court considered such significant matters in a case known as “Marion’s Case”. The citation, Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA at 15, is an important decision.
It involved a case where a child who was, by the time of the appeal, 14 years of age. She was said to suffer from mental retardation. Different expressions were used throughout the case. She had intellectual disability, severe deafness and epilepsy and ataxic gait and behavioural problems and could not care for herself.
Her parents applied to the Family Court of Australia for an order authorising performance as a hysterectomy and an ovariectomy on Marion. Alternately, they sought a declaration it was lawful for them to consent to the performance of the procedures.
The Secretary of the Northern Territory Department of Health and Community Services supported by the Attorney-General of the Commonwealth argued that the guardian of a child has no power to authorise the sterilisation of a child and that application to a court for authorisation of such an operation is mandatory.
The appropriate jurisdiction to authorise the sterilisation of a child sat with the Family Court.
The parents argued that the involvement of the Family Court is optional and is of a supervisory nature only.
The Human Rights and Equal Opportunity Commission intervened in the proceedings pursuant to section 11(1)(o) of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) on the basis that they had the capacity for such intervention with the leave of the court in “proceedings that involve human rights issues.”
The Commission argued that such a procedure could not be carried out lawfully without the authority of an appropriate judicial body. This requirement was a proper exercise of the parens patriae or statutory welfare jurisdiction of the Family Court.
The High Court considered matters of criminal consideration. The Court said:
“Sterilisation comes within the category of medical treatment to which a legally competent person can consent.”
The Court asked the question: “What, besides personal consent, can render surgical intervention lawful?”[1]
An adult with a permanent incapacity to consent to major medical treatment would be dealt with in the Northern Territory by the Adult Guardianship Act.
The Court had to consider what happens to a permanently incapacitated child. The Court examined the sources of parental power.
At paragraph 18, the High Court said:
“…the first issue relates to the important threshold question of consent: whether a minor with an intellectual disability is or will ever be capable of giving or refusing informed consent to sterilisation on his or her own behalf.”
A second question was considered: whether sterilisation fell into a special category outside the scope of a parent to consent to treatment. Should such an intervention be excluded from the scope of parental power?
In New South Wales and South Australia, the minor’s capacity to give informed consent has been regulated by statute. The Northern Territory where Marion’s Case arose still applied the common law.
The High Court referred to Gillick as “of persuasive authority”.
The High Court quoted Lord Scarman at [29] ibid at pp 183 – 184:
“Parental rights … do not wholly disappear until the age of majority. … But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law … is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child.”
The Gillick concept is not related to a fixed age.
Generalisation was considered to be between the ages of 11 and 14. There was a recognition that there is a need for future as well as present assessment in the case of children with intellectual disabilities.
The Court said:
“The capacity of a child to give informed consent to medical treatment depends on the rate of development of each individual. And if Gillick is taken to reflect the common law in Australia, as we think it now does, these propositions are true as a matter of law in the Northern Territory.”
Marion’s Case is an extremely interesting and significant decision.
The concept of Gillick competence has developed significantly in our jurisprudence.
In the paper, “˜Refusal of medical treatment – A Child’s Prerogative‘ by Pip Trowse (Associate Lecturer, Health Law Research Program, Faculty of Law, Queensland University of Technology) considered whether the decision of a “˜Gillick competent’ child can and should be overridden by the Court.
It is important to understand and remember that the parens patriae jurisdiction is a discretionary jurisdiction, which means that just because the power exists does not mean it is always appropriate to apply the power.
The concept of consent is seen as transforming what might otherwise be unlawful into acceptable contact. A patient must have the requisite capacity to consent to treatment. As said by the author, “A child is presumed incompetent unless he or she satisfies the test of “˜Gillick competence'”.
In deciding whether a person has the capacity to make the relevant decision, it is important for them to be able to have the level of competence required to make the decision. The greater the risk, the greater the competence required because of the significance of the consequences. A decision which has minor consequences is considered to require less capacity.
In essence, what is the respect that should be granted to a child who has been determined to be “˜Gillick competent’ in their decision making.
Whether a child is Gillick competent depends on an array of factors. There is no required test medical practitioners must ask themselves, however the factors the Court will consider (and so medical practitioners may be guided) are whether the child is:
Able to comprehend and retain both existing and new information regarding the proposed treatment;
Able to provide a full explanation, in terms appropriate to their level of maturity and education, of the nature of the proposed treatment;
Able to describe the advantages of the proposed treatment;
Able to describe the disadvantages of the proposed treatment;
Able to weigh the advantages and disadvantages in the balance, and arrive at an informed decision about whether and when she should proceed with the proposed treatment;
Able to understand that the decision to proceed with the proposed treatment could have consequences that cannot be entirely foreseen at the time of the decision;
Able to understand that the proposed treatment will not necessarily address all or any of the psychological and social difficulties that she had before the commencement of treatment;
Being free to the greatest extent possible from temporary factors that could impair judgment in providing consent to the procedure.
So, what happens if a child is “˜Gillick competent’? Will the Court then accept the child’s decision?
The answer was given by the Full Court of the Family Court of Australia in Re Jamie (2013) FLC 93-547 and is effectively this. If a dispute involves not only the Gillick competence of the child, but administration of the proposed treatment, then the Court should not only make a finding as to Gillick competence but also the form the treatment should take having regard to the best interests of the child and give significant weight to the child’s views in accordance with the child’s maturity and level of understanding.
So, whose consent is required to perform a medical procedure, and what if one or both parents object to treatment? The required consent of the child, parents and doctors, was usefully summarised in Re Imogen (No. 6) [2020] FamCA 761. In that case his Honour considered that the Court’s approval is required for non-therapeutic procedures requiring invasive, irreversible and major surgery, involving a significant risk of making the wrong decision, and where consequences of a wrong decision are particularly grave (Re Marion).
Re Imogen involved a child aged 16 years and 8 months diagnosed with gender dysphoria. Her father consented to the treatment. Her mother disputed the diagnosis and whether she was Gillick competent. The Court ultimately approved the treatment, accepting the evidence of her treating psychiatrist over the opposing expert. Justice Watts comprehensively considered the evidence.
At the end of the day, Imogen’s doctor addressed their evidence in accordance with the 8 elements of Gillick Competence and, quite frankly, had more interactions, observations and assessments of Imogen than two electronic interviews. The competing expert “had already generally formulated reservations about an adolescent’s ability to understand all the ramifications of gender affirming hormone treatment”.
Watts J reviewed recent authority and concluded that the three stages of treatment of gender dysphoria do not require court approval where each parent and the medical practitioner agree the child is Gillick competent.
However, his Honour held that an application to the Court is mandatory if a parent or medical practitioner disputes:
The Gillick competence of the child; or
The diagnosis of gender dysphoria; or
The proposed treatment for gender dysphoria.
Ultimately, in order to avoid the Court, consent if required from both parents, and the child if both parents and the relevant medical practitioners agree they are Gillick competent. There is of course the obligation on medical practitioners not to administer treatment in certain circumstances.
But not all treatments can be consented to, even by everyone involved. The Court’s approval is required for non-therapeutic procedures requiring invasive, irreversible and major surgery, involving a significant risk of making the wrong decision, and where consequences of a wrong decision are particularly grave. For instance, the non-therapeutic sterilisation of an intellectually disabled child in Re Marion.
These principles can be applied to other medical procedures and treatments.
The first question to ask is whether the proposed treatment is therapeutic. If it is not, then an application to the Court will be mandatory. For instance, the sterilisation of an intellectually disabled child without any therapeutic benefit.
The second question to ask is whether both parents and the medical practitioner(s) agree (a) to the treatment and (b) whether the child is Gillick competent and if so then (c) whether the child agrees to the treatment.
Mandatory applications include treatments that are non-therapeutic and treatments to which either parent, the medical practitioner or a Gillick competent child do not consent.
If a parent does not consent to a child’s treatment, a medical practitioner should not administer treatment to a Gillick competent child without court authorisation.
So, in cases in which a dispute arises, who can apply to the Court? The obvious parties are the parents.
In many special medical procedures cases other parties include public authorities or organisations dedicated to the welfare of vulnerable classes of children including transgender person. For example, in Re Kelvin [2017] FamCAFC 258 the applicant was the father, and the intervening parties were the Australian Human Rights Commission, the Department of Family and Community Services, the Attorney-General of the Commonwealth, the Royal Children’s Hospital and a private organisation called A Gender Agenda. All but the Attorney-General required leave to intervene. A Gender Agenda’s website describes itself as:
A unique community organisation actively engaged in increasing public awareness and understanding of intersex, trans and gender diversity issues. In addition to training and education, we provide advocacy and support services, information and resources and are actively engaged in human rights and law reform.
If a medical practitioner is unable to administer treatment, the situation can be reported to the Department of Child Safety, Youth Justice and Multicultural Affairs requesting that an application be made urgently to the Family Court of Australia. Theoretically medical practitioners themselves can make an application as a person concerned with the care, welfare and development of the child. However it would not be without cost to the practitioner.
Bell v Tavistock
The High Court of Justice of England and Wales recently heard an application for judicial review of the practice of health services prescribing puberty-suppressing drugs to persons under the age of 18 who experience gender dysphoria: Bell v Tavistock [2020] EWHC 3274.
The application was brought by the mother of a 15 year old patient on the waiting list for the NHS Gender Identity Development Service. At the time of the hearing the other claimant was an adult who was prescribed puberty blockers by GIDS at the age of 16, had a double mastectomy at 20 and now regrets transitioning.
As the case was brought by way of judicial review, the Court did not undertake a detailed analysis of the facts of an individual case. The Court was asked to consider generally at what age a child could consent to using medication for the purpose of suppressing puberty, commonly referred to as “˜puberty blockers’.
The Court considered whether or not a child could competently understand both the immediate effects of the use of puberty blockers and the long-term consequences of using puberty blockers. The Court considered the following at paragraph 134:
Firstly, there is real uncertainty over the short and long-term consequences of the treatment with very limited evidence as to its efficacy, or indeed quite what it is seeking to achieve. This means it is, in our view, properly described as experimental treatment.
The Court was forced to look at the issue of the use of puberty blockers as a unique issue and could not simply apply the same thought processes that could be applied to the use of more traditional medication. However, the Court also acknowledged that the fact that a treatment is experimental, and the long-term consequences unknown, does not prevent informed consent from being given.
The Court also acknowledged that that the children who were seeking access to puberty blockers were highly vulnerable and may often seek to use the medication to stop their immediate suffering without adequately considering the long-term effects, particularly on their fertility and sexual function. At paragraph 144 the Court said:
We do not think that the answer in this case is simply to give the child more, and more detailed, information. The issue in our view is that in many cases, however much information the child is given as to long-term consequences, s/he will not be able to weigh up the implications of the treatment to a sufficient degree. There is no age appropriate way to explain to many of these children what losing their fertility or full sexual function may mean to them in later years.
As in most public concerns cases, the “floodgates” argument was made. The Court effectively concluded that the interests of individual children ought not accede to concerns of the impacts on the justice system:
The position of the defendant and the Trusts is that they consider it would be an intrusion into the child or young person’s autonomy if a decision about treatment with PBs were to be made by the court not by the patient. They are concerned about the use of NHS and court resources if these decisions have to be made by the court. We do not consider that this is the correct approach. In principle, a young person’s autonomy should be protected and supported; however, it is the role of the court to protect children, and particularly a vulnerable child’s best interests. The decisions in respect of PBs have lifelong and life-changing consequences for the children. Apart perhaps from life-saving treatment, there will be no more profound medical decisions for children than whether to start on this treatment pathway. In those circumstances we consider that it is appropriate that the court should determine whether it is in the child’s best interests to take PBs. There is a real benefit in the court, almost certainly with a child’s guardian appointed, having oversight over the decision. In any case, under the inherent jurisdiction concerning medical treatment for those under the age of 18, there is likely to be a conflict between the support of autonomy and the protective role of the court. As we have explained above, we consider this treatment to be one where the protective role of the court is appropriate.
The Court did not support the practice of NHS GIDS:
… The problem is not the information given, but the ability of the children and young people, to understand and most importantly weigh up that information. The approach of the defendant appears to have been to work on the assumption that if they give enough information and discuss it sufficiently often with the children, they will be able to achieve Gillick competency. As we have explained above, we do not think this assumption is correct.
As to under 16s, the Court said:
… There will be enormous difficulties in a child under 16 understanding and weighing up this information and deciding whether to consent to the use of puberty blocking medication. It is highly unlikely that a child aged 13 or under would be competent to give consent to the administration of puberty blockers. It is doubtful that a child aged 14 or 15 could understand and weigh the long-term risks and consequences of the administration of puberty blockers.
Ultimately, the Court made a finding that a child under the age of 16 may only consent to the use of puberty blockers if they could demonstrate adequate competence:
A child under 16 may only consent to the use of medication intended to suppress puberty where he or she is competent to understand the nature of the treatment. That includes an understanding of the immediate and long-term consequences of the treatment, the limited evidence available as to its efficacy or purpose, the fact that the vast majority of patients proceed to the use of cross-sex hormones, and its potential life changing consequences for a child. …
But the Court encouraged judicial oversight even for over 16s:
In respect of young persons aged 16 and over, the legal position is that there is a presumption that they have the ability to consent to medical treatment. Given the long term consequences of the clinical interventions at issue in this case, and given that the treatment is as yet innovative and experimental, we recognise that clinicians may well regard these as cases where the authorisation of the court should be sought prior to commencing the clinical treatment.
That was in light of what their Honour’s had earlier said:
We do however recognise that in the light of the evidence that has emerged, and the terms of this judgment, clinicians may well consider that it is not appropriate to move to treatment, such as PBs or CSH, without the involvement of the court. We consider that it would be appropriate for clinicians to involve the court in any case where there may be any doubt as to whether the long-term best interests of a 16 or 17 year old would be served by the clinical interventions at issue in this case.
We express that view for these reasons. First, the clinical interventions involve significant, long-term and, in part, potentially irreversible long-term physical, and psychological consequences for young persons. The treatment involved is truly life changing, going as it does to the very heart of an individual’s identity. Secondly, at present, it is right to call the treatment experimental or innovative in the sense that there are currently limited studies/evidence of the efficacy or long-term effects of the treatment.
This line of reasoning conforms with the Australian approach. If the clinicians and the parents agree that the child is Gillick competent, then there is no need for judicial intervention. If there are any concerns at all however, whether from the clinician, parents or child, the Court’s involvement is necessary.
Parens Patriae
The idea of the parens patriae jurisdiction has developed over time. The Court of Chancery at one time were the guardians of infants whom it made its wards. The Court has assumed that the parens patriae jurisdiction extends to protecting “˜Gillick competent’ children where the child has made a decision which will seriously jeopardise the child’s health and survival (Trowse, Vol. 10, No. 2, QUT LJJ).
The Australian Courts have indicated a preparedness to do so. The guiding principle is always that the welfare of a child is paramount and that the “protection of the child should be elevated above all other interests”.
Section 67ZC of the Family Law Act provides a power to the Court in addition to the power to make a parenting order in s.65D. A parenting order may deal with any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child. Section 67ZC says the Court also has jurisdiction to make orders relating to the welfare of children. The difference appears remarkably unremarkable.
In Re Kelvin in assessing its jurisdiction to make a declaration that a child is Gillick competent, the Full Court of the Family Court of Australia reviewed the Explanatory Memorandum to the Family Law Reform Bill 1994 (Cth) which in discussing s.67ZC of the Act, at [319] states: This jurisdiction is the parens patriae jurisdiction explained by the High Court in Re Marion.
If a special medical procedure is required but the child’s parents fail to authorise the procedure, the court may provide authorisation: Re Marion per Brennan J at [31]. Birkett v Director General of Family and Community Services involved the administration of a blood transfusion to an infant notwithstanding written notification from both parents withholding consent on religious grounds. Without consent, or some lawful excuse, the act would constitute an actionable claim in battery. His Honour Bryson J of the Supreme Court of New South Wales held the treatment was authorised in the circumstances of urgency in which an application to the Court by the doctors was not practical. Bryson J considered that decisions relating to children are ordinarily left to parents, but that power is not absolute. Parental decisions concerning the welfare of children may be overridden by orders exercised by the Court in its parens patriae jurisdiction.
So, Australian Courts assume that the decision of a “˜Gillick competent’ child can be overridden by a court of law (Trowse).[2] Trowse states an examination of the case law reveals the court has rarely done so, the basis being that even though a child is “˜Gillick competent’, they are nevertheless a child.
The paper by Trowse suggests that it is inappropriate for the Court to override the decision of a “˜Gillick competent’ child. The decision that a child is “˜Gillick competent’ means that the child has the decision making competence of an adult. In the Gillick case itself, the child had to demonstrate sufficient maturity and intelligence to fully understand the proposed treatment.
Sometimes, the legislation excludes the capacity of a review of a child’s competence as “˜Gillick competent’. If there is no legislation, then the assessment is that a child is “˜Gillick competent’ or not. There is, however, the assumption that the Court can exercise the parens patriae jurisdiction as a discretionary jurisdiction regardless of the analysis of competence.
In Australia currently, the position is that there are limits to the autonomy in the decision making process of the “˜Gillick competent’ child.
In addition to considering issues of age, “˜Gillick competence’ and the parens patriae jurisdiction, it is also important, I think, to consider what we, in Australia, have determined to be the minimum age at which children can be arrested for, charged with or convicted of a crime. In Queensland, the age of criminal culpability is currently 10 years of age.
As arises in the medical environment, a very difficult area is to deal with the transition from childhood through the maturity and the recognition that at one end of the continuum there is the need to protect, and at the end of the continuum there is the need for responsibility to be assumed.
Bluntly, choices have consequences and the goal is to ensure the choices made by children are in their best interest.
Children who make bad choices.
In Queensland, section 29(1) provides that a person under 10 years is not criminally responsible for any act or omission (Criminal Code Act 1899 as amended).
A contrast to this is the reality that on 20 November 1989 the UN General Assembly adopted the convention on the rights of the child (CRC). There was an international recognition that childhood is a period of special care and assistance.
The interest of the child is the primary consideration in all decision making (Article 3) and any arrest, detention or imprisonment is only a last resort and for the shortest period of time (Article 37).
The difficulty is that an age level does not reflect emotional, mental and intellectual maturity.
In Australia, we have an over-representation of Aboriginal and Torres Strait Island offenders and these children, across all age groups, are more likely to have a Supervised Youth Justice Order than an Unsupervised Order.
This is based on the Department of Justice and Attorney-General Youth Justice Annual Summary Statistics 2011/2012 to 2015/2016.
Children have a limited ability to remove themselves from negative influences and environments. They have a limited capacity to overcome on their own socioeconomic disadvantage.
Children who have experienced poor parental supervision, harsh or punitive discipline, rejecting parental attitudes, or physical abuse are more likely to engage in criminal behaviour than other children – AEBI, M. 8L 2014 – “Problems, coping skills, psychosocial adversities and mental health problems in children and adolescents as predictors of criminal outcomes in young adulthood” – European Child and Adolescent Psychiatry Vol. 23 pp 283 to 293 at 284.
The proposition then is that consent which transforms an illegal act to a legal act is influenced by age, competence, and is supported by the parens patriae jurisdiction in the Family Court environment dealing with health issues but within the criminal justice system is, at the moment, defined by age. Those children can make bad decisions without protection from age 10.
It is interesting to note that you certainly come of age in terms of legal culpability much more readily than you come of age in having the right to make decisions about your own health.
How do you have confidence in the capacity to consent?
How is it best to analyse the complexity of a decision? Is it analysed with reference to the consequences or the concepts involved?
There is to be rigidity of age in legal culpability. Should there be a consideration of legal age in determining other decision making rights? The “˜Gillick competence’ test and its acceptance in the Australian jurisdiction would propose that that is not relevant.
Does a “˜Gillick competent’ child or a child of a particular age have a right to determine their own medical privacy? In Queensland, the privacy law pertaining to disclosure of children’s health information requires medical practitioners to determine the capacity of the child on a case by case basis. That is, there is no age restriction.
At the age of 14, a child can control what goes into, and who has access to the National Electronic My Health Record system.
A child can obtain their own Medicare card when they are 15.
Best practice in documenting consent
Currently, the usual practice in documenting consent is to ask a patient to sign a consent form. A parent may sign the consent form for a patient under the age of 18.
In a world that now accepts a Will can be made by leaving a message on a mobile phone and where there is an increasing recognition of the normal use of technology, is it reasonable to add a video or voice recording as a means of documenting consent?
Consent is often thought of as oral or written, with the latter tending to be the preferred form.
It is important to remember, particularly in the medico-legal realm, that in whichever form consent comes, consent is a mere concept capable of documentation. The document is not the consent. The patient gives the consent. A document purporting consent has been given may not have been properly, competently, given. The circumstances leading to the communication of consent is just as important as getting the go-ahead. That is because consent is not really consent unless it is properly informed.
Often the requisite information given to the patient is written, and then signed by the patient, for example, medical procedure consent forms.
But when it comes to assessing the competence of a child to give consent, is written text, or memory of conversations, sufficient? In a world in which it seems every device has a camera, why is it that consent is not recorded by audio-video?
In assessing a child’s competency, it would be farcical to presume a child the subject of competence assessment does not understand the reason for being asked specific questions directed to their capacity to consent. Tone and body language might be just as important as the words spoken. Why not conduct an interview with a child for the purpose of ascertaining their competence to consent recorded by video camera, questions, answers, and conversation?
It is common in parenting proceedings for parents to adduce as evidence video recordings of things children say at their home, and of the conflict between the parents which occurs at changeovers. Usually the recordings depict conflict perpetrated solely by the other party. Courts are often reluctant to give weight to video recordings where one party has control over the context of the recording. In other words, videos in this context are often an unrealistic, inaccurate, or unreliable record of events.
Those issues however can be mitigated in the confines of a medical practitioner’s office. Much like an interview conducted under s.93A of the Evidence Act 1977 (Qld), often by police.
The benefits of a video recorded interview process opposed to the written information form is perhaps best evidenced in the context of different cultures. It is common for some cultures, or people for whom English is a second language, to acquiesce, agree or consent to things little about which they know or understand.
Cultural context
There is always a cultural context. Parents and children whose demographic are associated with habitual interaction with authority with confidence are more likely to assess consent without the distraction of power imbalance, incomplete language competence and fear of consequences.
Sometimes the relative power imbalance is between parent and child. In circumstances where a child’s informed consent is appropriate and required, there must be measures in place to satisfactorily convey the requisite information to the child as well as place the child in an environment in which the child is comfortable expressing their perspective. It may be an insufficient environment to simply restrict physical proximity. No one measure will adequately account for the possible cultural complications a medical practitioner will encounter.
The medical practitioner must be able to make the information accessible to the particular patient. That is the obligation cast upon them by the court and their professional obligations.
[2] Trowse, P. (2010) Refusal of medical treatment – a child’s prerogative? 10(2) Queensland University of Technology Law and Justice Journal, 191-212.
By Charles Letts Senior Associate, Feeney Family Law
With the increase in family law practitioners who are nationally accredited arbitrators it is not unusual to see articles or social media posts from those arbitrators spruiking the benefits of arbitration in a family law context.
If I were being cynical, I’d suggest it was an attempt to drum up business rather than a public service announcement but having recently assisted a client through an arbitration process, there really are many things that arbitration offers that can be of significant value to the right client.
One thing that I don’t think gets discussed enough when talking about arbitration in the family law context is how much control the clients have over the process.
In my experience, arbitration is often described and viewed in very similar terms to a “standard” family law litigation experience, with the big difference being that the parties have “hired a decision maker” and so don’t have to wait as long as they would in a normal litigation process.
Whilst the lack of waiting is certainly a big part of the allure of arbitration, something that should be discussed and considered more is the way that there are so many options available to focus the arbitration on what is important to the clients and the actual resolution of the matter.
For example, if most of the historical facts of the relationship are agreed, then the use of a statement of agreed facts and a list of issues in dispute can significantly limit the length of final affidavits and assist in focusing them on what is actually important, along with limiting the time necessary for cross-examination.
Likewise, if the parties decide that there really aren’t any relevant factual issues remaining in dispute, the arbitration can be done on the papers or without any cross-examination at all.
In relation to the costs of arbitration, while the up-front cost of the arbitrator is certainly more than Court filing and hearing fees, the arbitration costs are likely to be a very small portion of the total legal fees.
I would expect that most parties could expect to see significant cost savings from being able to constrain the process to what is actually necessary to appropriately determine the matter. This includes not having to continually update financial positions, review new material and attend at the many procedural mentions and/or interim hearings that are generally necessary prior to finally getting a result.
In addition, if circumstances change such that the arbitration needs to be re-scheduled, it is far simpler to do so than trying to get new trial dates.
For our client, who had a complex financial matter with a significant legal question that needed to be resolved and some timing issues that related to that legal question, arbitration was absolutely a better option than waiting for a property only trial in the Federal Circuit Court or Family Court.
The arbitration process allowed the parties to engage an arbitrator who had the confidence of everyone involved, limit the extent of the material necessary for trial through a statement of agreed facts and list of issues in dispute and resolve a matter that hadn’t been able to be settled. When it became clear that it was going to be necessary to wait until a particular financial situation outside of the parties’ control was resolved before proceeding to have the matter determined, it was simple to adjourn the arbitration for as long as was necessary (but no longer) before jumping straight back into the process.
In addition, the parties were guaranteed to have the Award delivered, and subsequently registered, in a timeframe known to everyone in advance. The process of having the Award registered was simple and very user friendly, and it appears that the Court is strongly supporting the process by ensuring sufficient resourcing is available.
Whilst it is impossible to know for sure, I expect that the arbitration process ensured an outcome for our client at least 12 months earlier that if it had to go to a trial in the Court process.
So, what characteristics would a matter usually have before I would recommend arbitration as an option? As I see it, there are three main things I would look for:
A client who reasonably trusts the other party to “play by the rules”.
If this level of trust is not present then it is likely that, irrespective of what process is used, the matter is going to require active case management to ensure that the pre-hearing steps are dealt with appropriately. Significant levels of dispute relating to preparing the matter for finalisation (such as valuations, disclosure, and other such issues) is going to materially reduce, if not eliminate, the time and cost benefits of the arbitration process as opposed to a traditional Court process.
A generally uncontroversial factual background where neither party has major credit issues.
I don’t mean that the matter needs to be simple, or that both parties necessarily have exactly the same recollection of all events, but I would suggest that the more factual issues in dispute or credit issues that exist the less likely a client is going to benefit from an arbitration process.
Whilst a full-blown arbitration process can provide for a similar level of cross-examination and fact-finding enquiry as a trial, matters where the outcome of the case was likely to turn on the factual findings or findings of credit in relation to one or other of the parties are less likely to be appropriate for arbitration given the constrained appeal rights compared to a traditional Court process.
A situation where it is unlikely that a negotiated outcome can be reached.
This seems to mostly come up in circumstances where the best offer from the other party doesn’t even reach the lowest end of what you consider to be the range of appropriate outcomes.
A common example of this (combined with point 2) is where the parties simply cannot agree on what percentage adjustments should be made for the respective contributions and s75(2) factors, even though there are no major factual disputes about what was actually done and/or what the future likely holds.
It may also occur in circumstances where there is a “win/lose” point that neither party can reasonably concede because the benefits to “winning” that point are so great.
Something to keep in mind when in an arbitration process is that there is always the option of reaching a negotiated outcome, which can either be documented in the usual way through Consent Orders, or alternatively through a consent Award that is subsequently registered.
In summary, if you get a matter you aren’t able to resolve but where you trust the lawyers on the other side, the factual background to the matter is clear and both parties are generally willing to comply with their disclosure obligations, I am of the view that an arbitration is often going to provide a much better client experience than slugging it out through the Courts.
Family Law and Schools: Your Duties and Responsibilities as a School Leader
Understanding parenting arrangements and shared parental responsibility
Current scheme of care legislation came into effect in 2006. The 2006 amendments adopted a view that both parents would have a significant role in a child’s life unless a parent was an unacceptable risk. Care orders from then on included much more time with the non-resident parent. Until then, a typical care arrangement would have been 12 nights a fortnight with the resident parent and two nights a fortnight with the non-resident parent and with school holidays being spent usually with equal time but with the December school holidays often broken straight through the middle so that children who had spent two nights a fortnight with a particular parent were then spending three weeks with that parent. It was also not unusual for the non-resident parent to have no contact with the children in the 12 nights that they were not resident with them and to have little opportunity to remain current about their children’s circumstances.
Section 60CC is the section of the Act that is described in this way – how a court determines what is in a child’s best interest. The primary considerations are the benefit to a child of having a meaningful relationship with both of their parents and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
After those primary considerations, there are a number of additional considerations. I have included that section in the paper just so you are aware of the list. I am not seeking to give you legal education, however, it is important for a clear understanding of the objects and principles of the Act.
Section 60B is also a significant section and it sets out to ensure that the best interests of children are met, and it sets out a series of steps to be taken and explains the underlying objects which are that children have the right to know and be cared for by both of their parents, they have a right to spend time on a regular basis with, communicate on a regular basis with both their parents and other people significant to their care, welfare and development, parents are to jointly share duties and responsibilities, parents should agree about the future parenting of children, and children have the right to enjoy their culture.
In reality, these goals operate in the pragmatic context of how many nights a parent will spend with the child per fortnight.
Section 65DAA is another important section. The court has to consider a child spending equal time or substantial and significant time with each parent in certain circumstances. Again, I have extracted that but the tagline on the section that is important is equal time or substantial and significant time.
More orders are made providing for substantial or significant time than are made for equal time.
The logic of that is that parents who have a high conflict parenting relationship are not found to be the best parents to share week-about care and that if you are litigating to work out your care arrangements, you may well meet the criteria to be seen as a high conflict parent.
Some parents are considered to be an unacceptable risk to their children.
In a family environment where one parent is not an unacceptable risk, where neither parent is an unacceptable risk, children spend four, five, six or seven nights a fortnight with the other parent. As a professional, I consider a 5/9 split as ordinary and everyday as the alternate weekend arrangement was before the 2006 amendments.
So, parenting arrangements then are tailored to accommodate children’s age. Younger children need to see both parents more regularly, so in the situation of a 5/9 division, that might be three nights in one week and two nights in another for a younger child, but five nights in a row for an older child.
Another consideration is the number of transitions that children have to endure. Generally, with low conflict relationships, transitions are considered to be less difficult for children than in high conflict situations. Sometimes, parents think that they could look after children after school even when the children are spending the evening and overnight with the other parent. While this might seem to be a simple solution and to provide very good after school care arrangements, such an arrangement is actually very difficult on children as they settle into one home and their routines and expectations of one parent only to have to switch back to the routines and expectations and, indeed, personality of the other parent.
There are all sorts of arrangements that people engage in. They work to work rosters, they work to children’s after school arrangements and they frequently include new partners and grandparents, as you all know.
Time spent is considered in terms of days and nights. Parental responsibility is an entirely different concept. The old language for parental responsibility was once guardianship. Parental responsibility is given the meaning that it has in section 61B. Parental responsibility includes the duties, powers and authority which, by law, parents have in relation to children. Parents all have joint parental responsibility with or without an order. If a court makes an order for parental responsibility, it can define the ambits of responsibility, so it might be that the court would grant one parent sole parental responsibility for medical decisions, or sole parental responsibility for education decisions. These are not common orders and most people retain joint parental responsibility. That means there is an obligation to consult with the other parent about decisions that have a long-term impact. They are traditionally described as decisions about schooling, medical matters and education.
When the 2006 amendments were first introduced, the court was very wary of ordering sole parental responsibility. However, as a response to the need to manage families where there is family violence, the court is now much more robust in making sole parental responsibilities so that the offending parent may find that they lose the right to exercise joint parental responsibility because the victim parent cannot realistically be expected to work with a person who has inflicted violence upon them.
Applicable legal principles
Actual extract from a 2020 Judgement:
When considering what parenting order is proper, I am obliged to apply Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[5]
A “˜parenting order’ is defined in s 64B of the Act and may deal with matters including:
The person or persons with whom a child is to live;
The time a child is to spend with another person or other persons;
The communication a child is to have with another person or persons; and
The allocation of parental responsibility for a child.
The objects and principles of Part VIIof the Act are set out in s 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration(s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[6] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[7]
Section 60CGimposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DACmakes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[8]
Best practices for working with separated parents and divided and blended families.
Many parents never have orders.
Parental agreements about the care of their children can be recorded in two ways. One is a parenting plan. The other is a court order. It may be by consent but need not been.
Many parents have nothing in writing. These are likely to be the low conflict parents and are of least concern to schools.
Parents without orders have joint parental responsibility.
Information has a number or sources. Your management of information will be determined by its subject matter and its form and your school’s policies.
Parent to school about themselves
The school will have its own articulated policy which has been communicated to parents.
The school should not share information about a parent to another parent unless permitted to do so.
Act cautiously.
Parent to school about the other parent
I would recommend absolute caution. Don’t accept any anecdotal information and don’t reproduce anything.
Parent to school about a student of the school
This is more complex as information that is relevant to the child’s achievement at school will become part of the ordinary working information for the school. If it is anecdotal about the child but relevant to education and the parent has not expressed concern about dissemination, the information is part of the working knowledge about the child.
If the information is anecdotal about the child but is about the child’s experiences of the other parent, I suggest caution be assumed in reliance on the information and dissemination. Parties seek to co-opt schools into being on their side. This can create unconscious bias on the part of the school or the teacher which may result in difficulties for the child and or the other parent feeling disenfranchised from the school. Anything in writing can be seen. Remember the subpoena power which I will talk about later.
You will be quoted, or your words will be heard to fit an existing narrative.
If the information is in the form of a medical report, then the school itself has no need to disseminate such a report. The parents will have joint parental responsibility which has not be defined by a court order and such a report should not have been obtained unilaterally. If it appears to have been obtained unilaterally, be cautious about such a report. It is not the role of the school to ensure the other parent is informed.
Information properly sought should be sought in the context of a written authority from both parents.
Beware the perception that the paying parent is treated differently.
What does your own contract with the parents provide for? Is the contract only with the paying parent?
Low conflict parents
I would not accept oral information about variations of any arrangement. Oral information need not be reliable or can be misunderstood.
Invite the parents to provide updates on an annual basis at least.
High conflict parents
These parents are most likely to have orders. There may also be an ICL.
The ICL is most likely to contact the school or subpoena school files.
A Family Report is a document written by a family consultant or social worker appointed by the Court. It provides an independent assessment of the issues in the case and can help a judge make decisions about arrangements for the child or children the case relates to. It may also help the parties reach an agreement. A Family Report is often part of the parenting order process. The report writer may seek information from the school but would do so subject to court order or parental consent.
These parents will quote you and seek to have the school on their side. Be very careful of everything that is said. Keep it formal and in writing. Individual teachers should avoid making anecdotal reports.
When parents are high conflict they often litigate. Litigation is an adversarial process. Someone wins and someone losses. In many respects it is the parent who loses you have to be thoughtful about. Children need school as a safe space.
Be careful of responding to parent’s emails. This may be done by a busy teacher when tired. Don’t put yourself at risk with this category of parent. They are looking for an edge. Your email will get into evidence.
Identify this type of parent and make sure you know the details of the orders if there is anything unusual.
These parents collect children early to avoid the other parent, they withhold children when there is conflict. They question the quality of lunches, ironing of school clothes… anything they think might assist them.
Fall back to school policy whenever you need to.
You are entitled to feel safe.
Family Violence & Apprehended Domestic Violence Orders:
As we all know, Domestic Violence is a significant problem in Australia. Significant strides have been taken in relation to the manner with which society views domestic violence and the process for dealing with DV issues in family. As School leaders, you may be one of the first parties to engage with a child who has been exposed to, witnessed directly or has domestically violent home circumstance.
For context, Domestic violence has a broad definition. It is defined primarily in two acts. First in the Family Law Act at section 4AB. Second, in the Domestic and Family Violence Protection Act 2012 at section 8.
The definition in the Family Law Act is more general in terms of precisely what domestic violence is and in fact uses the term “family violence”. The definition is as follows: –
Definition of family violence etc.
For the purposes of this Act, family violencemeans violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member ), or causes the family member to be fearful.
Examples of behaviour that may constitute family violenceinclude (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(a) overhearing threats of death or personal injury by a member of the child“˜s family towards another member of the child“˜s family; or
(b) seeing or hearing an assault of a member of the child“˜s family by another member of the child“˜s family; or
(c) comforting or providing assistance to a member of the child“˜s family who has been assaulted by another member of the child“˜s family; or
(d) cleaning up a site after a member of the child“˜s family has intentionally damaged property of another member of the child“˜s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child“˜s family by another member of the child“˜s family.
In the Domestic and Family Violence Protection Act 2012 it is defined as:
(1) Behaviour directed toward a person which is: –
Physically or sexually abusive;
Emotionally or psychologically abusive;
Economically abusive;
Threating;
Coercive; or
In any other way controls or dominates the second person and causes the second person to fear for their safety or wellbeing or that of someone else.
(2) Without limiting subsection (1) , domestic violence includes the following behaviour:-
(a) causing personal injury to a person or threatening to do so;
(b) coercing a person to engage in sexual activity or attempting to do so;
(c) damaging a person’s property or threatening to do so;
(d) depriving a person of the person’s liberty or threatening to do so;
(e) threatening a person with the death or injury of the person, a child of the person, or someone else;
(f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
(g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
This definition extends to procuring someone else to engage in behaviour that if engaged in by the person would be considered domestic violence.
In the Domestic and Family Violence Protection Act 2012, there are also definitions of “˜associated’ domestic violence, “˜exposed to domestic violence’, “˜emotional or psychological abuse’ and “˜economic abuse’. I would recommend that you take the time to read those definitions yourself.
One of the key parts of DV is that it is a civil charge not a criminal charge. Once an order is made, however, a breach of that order is a criminal offence which is prosecuted by the Police and/or the Department of Public Prosecutions.
I could stand her an inundate you with the ins and outs of what constitutes domestic and family violence, however, that will not necessary aide you in your employment and role.
For a school leader an understanding of what Domestic and Family Violence is, is important. The problem you will encounter will be: “what are my obligations, if a child comes to me and either discloses to me in relation to what they are experiencing which you feel may constitute DV.” The reporting requirements are different for each state and each state has a different standard which must be met. I focus in this paper on Queensland’s law.
Firstly, it is critical that you know your school’s internal processes. You must know who you can speak with within your organisation about the issues disclosed to you and where and how confidentiality impacts the extent of your disclosures.
Second, you must be aware that you are considered a teacher for the purpose of the Child Protection Act 1999. With that designation comes responsibilities for reporting. If you form a reasonable suspicion that a child has suffered, is suffering or is at an unacceptable risk of suffering significant harm caused by physical or sexual abuse and may not have a parent able and willing to protect them. This extends to neglect or any other form of abuse.
A critically important section of the law is s 13C of the Child Protection Act 1999. I suggest you take the time to read that section yourself, however, it says as follows;
Considerations when forming a reasonable suspicion about harm to a child
Section 13C – Considerations When Forming A Reasonable Suspicion About Harm To A Child
(1) This section applies to a person in forming a reasonable suspicion, for section 13A (1) or division 2, about whether a child has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm.
(2) The matters that the person may consider include””
(a) whether there are detrimental effects on the child’s body or the child’s psychological or emotional state””
(i) that are evident to the person; or
(ii) that the person considers are likely to become evident in the future; and
(b) in relation to any detrimental effects mentioned in paragraph (a) “”
(i) their nature and severity; and
(ii) the likelihood that they will continue; and
(c) the child’s age.
(3) The person’s consideration may be informed by an observation of the child, other knowledge about the child or any other relevant knowledge, training or experience that the person may have.
So, if anything said to you by a child or anything observed by you that satisfies the above and result in you forming a reasonable suspicion must be report to Child Safety. It is important that you follow internal process prior to disclosing to Child Safety. Of course, if your internal processes are followed and you find yourself in a position where those processes are against you reporting and you still believe your obligation to report is still relevant then we suggest you contact Education Queensland and seek guidance from their legal team. The obligation to report is on the individual and so it is your suspicion that matters.
Dealing with requests for referrals and reports & navigating pitfalls
This is another area which might unwittingly involve you in parental dispute. If you give referrals you must make clear if you are doing that as a person or an officer of the school. A classroom teacher might have thoughts and might know the local market as to which a leader is doing good work in a particular age group but does your employment contract or status permit you to you to express that opinion as an official position of the school. I had a matter where the father submitted an application to enrol his daughters. He filled in the mother’s contact information. The school sent probably a generic acknowledgment of the enrolment to both parents. The mother was outraged that he had shared information disclosing her home address without her knowledge. She consulted the police to decide if she considered it a breach of a Domestic Violence order. I don’t know what the school could have done to avoid being caught up in that difficult moment. Perhaps a question as to whether the other parent has consented to the provision of their details on the form? These were not high conflict parents in that they had been able to resolve care arrangements by consent.
There are now many apps on devices. Often you will have one parent having to provide permission to add an app to a device. Often parents can have covert oversight of the contents of children’s texts, emails or documents.
The other parent may be unhappy that the other has such authority and this might result in the child not having access to apps. Tread carefully.
Dealing with Subpoenas
Ceteris paribus, confidential case notes by school leaders are able to be subpoenaed.
The duty of confidentiality for school leaders is one that may be overridden by a valid search warrant or being served with a valid subpoena from a court. Although documents may be seized under a valid warrant their use in a court as evidence may be excluded. As a measure of upholding the duty of confidentiality as much as possible, leaders are widely encouraged to implement a tactic or attitude of “aggressive submissiveness”. This term essentially is to be unyielding with confidential information until a judicial officer makes clear that compliance is necessary. Complying with subpoenas is allowed by privacy legislation.
When dealing with privacy legislation and important protection for school leaders is found in the Evidence Act which similar to the Health Practitioner Regulation National Law Act2009 applies throughout Australia. Within the Evidence Act 1977 are provisions that contain “professional privilege”, information that is privileged is exempt from disclosure to courts. “Professional privilege” prevents the admission of “protected confidences” to the court.
These confidences are:
(a) communications from a person (the confider)
(b) to another person (the confidant)
(c) where the confidant is acting in a professional capacity, and
(d) there is either an express or implied requirement of confidentiality
Despite this protection under the Evidence Act, a court is at full discretion to admit or refuse to admit a protected confidence into evidence. This discretion is conditional on the harm that is caused to the confider being outweighed by the desirability of admitting the evidence. Should this harm to the confider outweigh the desirability of admitting the evidence the court must then refuse to admit the protected confidence (or any document comprising the protected confidence).
Having a perfect transcript opposed to notes can be seen as a disadvantage when dealing with subpoenas as there is more detail on exact transcripts than with notes. All private information can be subpoenaed from school leaders. This is a particular negative of online counselling as everything that gets talked about between client and counsellor has a perfect record of it. In this light it is negative as the client’s confidentiality is at higher risk with more accurate and readily usable information.
It is more sensible then for school administrators and teachers to be subpoenaed than it is for them to be forthcoming with the limited information they can give out as a Court is unlikely to twist information for support of particular positions of parents regarding welfare issues for their children.
A guide to giving evidence in Court proceedings
Although parenting proceedings are to enhance the best interest of the children the subject of the proceedings, once a matter is before a court and there is a trial being held you are in an environment that is alien and a bit arcane.
The original advocate was appointed to replace more basic methods such a trial by ordeal and to attempt to balance power.
Most people giving evidence feel that trial by ordeal is not so remote.
We know from neuroscience that once people get upset, stressed and anxious, their capacity for their best cognition is lost or reduced. Cross examination really relies on your getting a bit rattled before the harder questions get asked!
The usual process is that you will have either provided an affidavit or been subpoenaed to give evidence and produce documents.
Once you are in the witness box:
Opposing counsel will cross examine you. If a matter involves significant conflict you may have been called a s witness by the ICL. The ICL is the independent children’s’ lawyer and aids the court in gathering and presenting evidence and in adopting a view that is independent of either parent although may coincide with a parent.
Whoever calls you as a witness is usually unable to cross examine you. That means you will be cross examined by the barrister of the parties who may not agree with your position.
Usually there will be questions that appear to seek little information but in fact are laying the foundation for a more significant question or proposition.
Don’t try to guess where they are going.
Listen to the question. Don’t engage with the person asking the questions. Your job is to inform the court about information relating to a child. Give a short concise answer. The more you say the more questions can be generated from your answer.
You don’t have the whole picture so just do you part and leave.
Before you get in the witness box
Please prepare your thoughts and be clear in your opinions or know the contents of the file you are producing. If you are the author of a document, you may be asked to identify it. It may then be tendered into evidence. That is a rule of evidence.
You may be considered an expert. Only an expert can express an opinion in the trial. If you are to be an expert, then the person calling you as a witness will ask you questions about your qualifications and training. This process is called qualifying you as an expert. It may have already been done in the affidavit you may have provided.
This is not questioning you but taking a step required to permit you to give opinion evidence. Another party may question your expertise for this task. You may be an expert but not exactly on this topic perhaps. Again, this is not about you so wait till those issues are sorted out between the lawyers and the judge.
You have one job: to give the judge the best information to make the best decision about the care arrangements for a child or children.
Remember, it is not possible for the adults in a court room to be more confronting than the pupils you habitually stand in front or did stand in front of. Keep that in mind. Some barristers have what I call a hectoring style. It is unpleasant but works for them. Some are very pleasant and intend you to trust them, so you drop your guard and say perhaps more than you meant to.
It is not personal. They have their client’s instructions and are doing a job.
So, know your topic.
Think about your position or preference in the information.
Listen to the question.
Give the shortest answer you can.
Don’t engage in argument and look at the judge as you answer.
You may what to say yes but and find you are cut off. The person calling you as a witness has a right to reexamine. They will come back and give you the chance to say more if they think it is important.
