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:

1. Able to comprehend and retain both existing and new information regarding the proposed treatment;
2. Able to provide a full explanation, in terms appropriate to their level of maturity and education, of the nature of the proposed treatment;
3. Able to describe the advantages of the proposed treatment;
4. Able to describe the disadvantages of the proposed treatment;
5. 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;
6. 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;
7. 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;
8. 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:

1. The Gillick competence of the child; or
2. The diagnosis of gender dysphoria; or
3. 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:

149. 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:

150. … 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:

151. … 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:

151. 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:

152. 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:

147. 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.
148. 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.

[1] Paragraph 13.

[2] Trowse, P. (2010) Refusal of medical treatment – a child’s prerogative? 10(2) Queensland University of Technology Law and Justice Journal, 191-212.

Family Law Arbitration – A First-Hand Perspective

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

1. 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:

1. The person or persons with whom a child is to live;
2. The time a child is to spend with another person or other persons;
3. The communication a child is to have with another person or persons; and
4. The allocation of parental responsibility for a child.

The objects and principles of Part VII of 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 60CG imposes 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 65DAC makes 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]

References

^[5] Family Law Act 1975 (Cth), s 65D.

^[6] Baghti & Baghti and Ors [2015] FamCAFC 171.

^[7] M & M (1988) 166 CLR 69.

^[8] Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637.

2. Parent and student consent and privacy issues:

Best practices for working with separated parents and divided and blended families.

Many parents never have orders.

1. 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.
2. Many parents have nothing in writing. These are likely to be the low conflict parents and are of least concern to schools.
3. 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.

1. The school should not share information about a parent to another parent unless permitted to do so.
2. 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

1. 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.
2. 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.
3. You will be quoted, or your words will be heard to fit an existing narrative.
4. 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.
5. Information properly sought should be sought in the context of a written authority from both parents.
6. Beware the perception that the paying parent is treated differently.
7. What does your own contract with the parents provide for? Is the contract only with the paying parent?

Low conflict parents

1. I would not accept oral information about variations of any arrangement. Oral information need not be reliable or can be misunderstood.
2. Invite the parents to provide updates on an annual basis at least.

High conflict parents

1. These parents are most likely to have orders. There may also be an ICL.
2. The ICL is most likely to contact the school or subpoena school files.
3. 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.
4. 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.
5. 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.
6. 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.
7. Identify this type of parent and make sure you know the details of the orders if there is anything unusual.
8. 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.
9. Fall back to school policy whenever you need to.
10. 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

(j)  unlawfully depriving the family member, or any member of the family member“˜s family, of his or her liberty.

• For the purposes of this Act, a childis exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

• Examples of situations that may constitute a childbeing exposed to family violence include (but are not limited to) the child:

(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;

(h) unauthorised surveillance of a person;

(i) unlawfully stalking a 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 Act 2009 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.

3. 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.

Costs in Family Law

Costs in the family law jurisdiction differ from costs in other civil jurisdictions where costs follow the event. Section 117(1) of the Family Law Act 1975 (Cth) requires that parties to proceedings under the Act bear their own costs, subject to a few exceptions:

1. Section 117AA, empowering the court to order costs in proceedings under Part XIIIAA – International Conventions, International Agreements and International Enforcement;
2. Section 45A, empowering the court to make costs orders it considers just when making a summary decree; and
3. Section 70NFB(1), requiring the court to order costs in proceedings relating to contraventions against orders affecting children without reasonable excuse.

The main exception, and the focus of my discussion, is s 117(2) and the factors in s 117(2A). 117(2) allows the court to make what orders it considers just if justified, in the court’s opinion, by the circumstances. The orders may be final or interim and for costs or security for costs. 117(2A) contains matters the court must have regard to when considering the order:

• The financial circumstances of the parties;
• Whether any party receives legal aid assistance and the terms of that assistance;
• The conduct of the parties to the proceedings;
• Whether a party’s failure to comply with previous orders necessitated the proceedings;
• Whether any party has been wholly unsuccessful;
• Any written offers to settle the proceedings made by the parties and the terms of such offers; and
• Such other matters the court considers relevant.

Each matter must be considered, as a rule none carry more weight than the others.[1] That said, of course each carries different significance in the circumstances of each case.

The normal order under s 117(2) is, of course, costs on a party to party basis. There is also scope in exceptional cases for indemnity costs to be ordered. However, in Sfakianakis & Sfakianakis [2019] FamCAFC 54, the Full Court of the Family Court of Australia discussed a peculiar breed of costs, “special costs”. Doing so, they demonstrated both the flexibility of s 117(2) and, once again, how high the bar for indemnity costs is.

The judgment considered whether the husband should pay costs after his appeal was dismissed, and on what basis. As Their Honours noted at [15]-[16], “the [husband’s] appeal was wholly unsuccessful (s 117(2A)(e) and the [husband] abandoned much of his case on the day of the appeal (s 117(2A)(c) and (g)). […] These matters comfortably [justified] an order for costs.”

He discussed the Family Court as “a place where the law of fraud does not apply [… and] the law of justice and equity is somehow devoid of a meaning […] it has nowhere else [sic]” [18]. He claimed the jurisdiction to exercise discretion under s 79 did not exist [18].

The Full Court noted the wife’s reply was “correct and commendably restrained” [20]. A summation of her position was the husband’s views were contrary to authority and the scheme of the Act [19] and addressing it required costs which were not reasonably necessary.

The Court considered the discussion of costs in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225. They noted Sheppard J’s summation of the authorities supporting indemnity costs included:

• Where proceedings continued in wilful disregard of known facts or clearly established law; and
• Involve the undue prolongation of a case by groundless contentions.

They considered these aptly applied to the husband’s conduct, dubbing his allegations “outlandish, indefensible, reckless and doomed to fail” [30]. On top of his allegations, the husband refused reasonable offers to compromise.

The Court found his conduct justified costs exceeding party to party costs. However, they did not consider it met the bar for indemnity costs. They ordered special costs; a bespoke remedy.

In discussing special costs, Their Honours relied on the breadth of the phrase “such order as to costs […] as the court considers just” in s 117(2). Noting this allows them to “fashion an order […] apt to the circumstances” [10].  They discussed the Court’s history of doing so, ordering costs on a trustee basis, being a full indemnity limited to costs reasonably incurred and reasonably in amount, orders for a partial indemnity and costs fixed to a particular sum. The Court dubbed all these orders which are neither party to party costs nor indemnity costs, special costs orders. They noted that the categories for these orders are not closed. Costs are within the Court’s discretion and may be moulded to the facts and circumstances of any case.

Section 117(2) affords the Court great flexibility in ordering costs. But the presumption in s 117(1) has stamped courts exercising the Act’s discretion with reluctance to order a full indemnity.

Another reluctance emerging is that when a trial judge does take the step of ordering indemnity costs, the Full Court is reluctant to interfere. In SCVG and KLD and Anor [2017] FamCAFC 95 Thackray ACJ and Ryan JJ and May J reached that conclusion from different reasoning.

The appellant husband in that case argued a number of matters both the joint judgment and May J found meritless. Relevantly, that the trial judge, Cronin J, ought not have deviated from s 117(1).

On this topic, the joint-judgment noted the burden of establishing Cronin J erred was “a heavy one” [54]. Citing Harris & Harris (1991) FLC 92-254 to say, “it is only in the rarest cases that the Full Court should interfere”.

Regarding the husband’s position, they noted Cronin J’s extensive examination of authority. He recognised the extraordinary step he was taking. He examined the husband’s conduct, making allegations which ought never be made and unduly prolonging the proceedings. Considering the authorities and the husband’s conduct, His Honour decided all indemnity costs required was “for the Court to be satisfied of particular [circumstances] that warrant an order other than on a party- party basis” [57]. Their Honours did not disagree.

Again, the joint judgment did not disagree. They did not discuss special costs orders or any other intermediary step between party-party costs and indemnity costs. They allowed Cronin J’s comment that if more than party-party costs was justified, indemnity costs were justified. So, Sfakianakis could be a step away from the position expressed in SCVG.

Alternatively, Cronin J’s order might itself be a special costs order. He only ordered the husband to pay 50% of the wife’s costs on an indemnity basis. Perhaps Sfakianakis is less a new step in the authorities or a deviation from the norm, so much as a case in which the Full Court named a class of order that the Court was already making.

Why do we have costs agreements and disclosure notices?

The legal profession has highly regulated obligations to clients.

I refer you to section 299 under Part 3.4 Costs Disclosure and Assessment.

We are informed that the main purpose of Part 3.4 is:

• to provide for law practices to make disclosures to clients regarding legal costs;
• to regulate the making of costs agreements relating to legal services including conditional costs agreements;
• to regulate the billing of costs for legal services;
• to provide a mechanism for the assessment of legal costs and the setting aside of particular costs agreements;
• to provide for the maximum payment for law practice conduct of a speculative personal injuries claim other than practice as in the manner of a barrister.

There are definitions found at section 300.

Section 308 deals with cost disclosures. It is absolutely imperative that your disclosure notices are issued to clients promptly after you are retained. The disclosure must satisfy the following:

• The basis on which legal costs will be calculated, including whether a scale of costs applies to any of the legal costs; and
• information about the client’s rights to:
  • negotiate a costs agreement with the law practice; and
  • receive a bill from the law practice; and
  • request an itemised bill after receipt of a lump sum bill and be notified under section 315 of any substantial change to the matters disclosed; and
• an estimate of the total legal costs if reasonably practical or if that’s not legally practical, a range of estimates for the total legal costs and an explanation of the major variables that will affect the calculation of these costs; and
• details of the intervals, if any at which a client will be billed; and
• the rate of interest, if any, that the law practice charges for overdue legal fees; and
• if the matter is litigious, an estimate of:
  • the range of costs that may be recovered if the client is successful; and
  • the range of costs the client may be ordered to pay if the client is unsuccessful; and
• the client’s rights to progress reports under section 317; and
• details of the person who the client may contact to discuss the costs; and
• information that are open in the event of a dispute.

Please read section 308 carefully. I have inserted the whole of that section into this paper.

Disclosures should be made even to town agents. Section 310 tells us that the disclosure must be made in writing before or as soon as practical after the law practice is retained.

In Family Law matters, we do not have a right to enter into a speculative agreement.

You do not have to make disclosure if the total legal fees, including disbursements, but exclusive of GST, are not likely to exceed $750.

Family lawyers do not and cannot enter into uplift fees which are dealt with at section 313.

The written disclosures are to be expressed in clear plain language and must be translated into a language other than English if the client is more familiar with that language. If the practice is aware the client is unable to read, the law practice must arrange for the information to be given to a client orally in addition to the written disclosure.

Section 315 – it is an ongoing obligation.

Disclosure already made must be constantly updated.

You will note that the obligations are protective of clients, not practitioners.

I have extracted in full section 316 which sets out the effect of failure to disclose.

316       Effect of failure to disclose

• If a law practice does not disclose to a client or an associated third party payer anything required by this division to be disclosed, the client or associated third party payer, as the case may be, need not pay the legal costs unless they have been assessed under division 7.

Note””

Under section 341, the costs of an assessment in these circumstances are generally payable by the law practice.

(2)     A law practice that does not disclose to a client or an associated third party payer anything required by this division to be disclosed may not maintain proceedings against the client or associated third party payer, as the case may be, for the recovery of legal costs unless the costs have been assessed under division 7.

(3)     If a law practice does not disclose to a client or an associated third party payer anything required by this division to be disclosed and the client or associated third party payer has entered into a costs agreement with the law practice, the client or associated third party payer may also apply under section 328 for the costs agreement to be set aside.

(4)     If a law practice does not disclose to a client or an associated third party payer anything required by this division to be disclosed, then, on an assessment of the relevant legal costs, the amount of the costs may be reduced by an amount considered by the costs assessor to be proportionate to the seriousness of the failure to disclose.

(5)     If a law practice retains another law practice on behalf of a client and the first law practice fails to disclose something to the client solely because the retained law practice failed to disclose relevant information to the first law practice as required by section 309(2), then subsections (1) to (4)””

(a)      do not apply to the legal costs owing to the first law practice on account of legal services provided by it, to the extent that the non-disclosure by the first law practice was caused by the failure of the retained law practice to disclose the relevant information; and

(b)      do apply to the legal costs owing to the retained law practice.

(6)     In a matter involving both a client and an associated third party payer if disclosure has been made to 1 of them but not the other””

(a)      subsection (1) does not affect the liability of the 1 to whom disclosure was made to pay the legal costs; and

(b)      subsection (2) does not prevent proceedings being maintained against the 1 to whom the disclosure was made for the recovery of those legal costs.

(7)     Failure by a law practice to comply with this division is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any Australian legal practitioner, or Australian-registered foreign lawyer, involved in the failure.

It is required by section 317 to provide progress reports.  I would anticipate that from time-to-time as a matter of practice, you do so.

Disclosure is one obligation and there are consequences as a result of a failure to adequately meet the disclosure obligation.

A law practice may seek security for legal costs (s.320).

A law practice may charge interest (s.321).

Costs agreements are a completely different obligation to the disclosure obligation. Disclosure obligations exist if the quantum is going to be more than $750.

Costs agreements may be made.

Disclosure must be made. A client must know how the legal costs are going to be calculated.

A costs agreement must be written or evidenced in writing and it in fact consists of a written offer that is accepted in writing or by other conduct.

It is an offer to the client as to the terms upon which the legal services will be provided.  The offer must clearly state:

1. that it is an offer to enter into a costs agreement;
2. that it can be accepted in writing or other conduct; and
3. the type of conduct that will constitute acceptance.

There is such a thing as a conditional costs agreement, but as I have already said, and pursuant to section 323, a conditional costs agreement cannot involve criminal proceedings or proceedings under the Family Law Act.

A costs agreement is a contract.  Section 326 reminds us that it may be enforced in the same way as any other contract subject to this Division and Division 7.

Beware sections 327 and 328.

Costs agreements that contravene the provisions of this Division of the Legal Profession Act are void. If you’ve entered into a costs agreement that contravenes section 324 or 325, the uplift and contingency fees, those are not enforceable.

Please be aware of section 328. The Supreme Court or QCAT, on an application by a client, can set aside a costs agreement if it is not fair and unreasonable.

I have extracted all of section 328 into this paper.

328       Setting aside costs agreements

(1)     On application by a client, the Supreme Court or the tribunal may order that a costs agreement be set aside if satisfied the agreement is not fair or reasonable.

(1A)   An application under subsection (1) to the tribunal must be made as provided under the QCAT Act.

(2)     In deciding whether or not a costs agreement is fair or reasonable, and without limiting the matters to which the Supreme Court or tribunal can have regard, the Supreme Court or tribunal may have regard to any or all of the following matters””

(a)      whether the client was induced to enter into the agreement by the fraud or misrepresentation of the law practice or of any representative of the law practice;

(b)      whether any Australian legal practitioner or Australian-registered foreign lawyer acting on behalf of the law practice has been found guilty of unsatisfactory professional conduct or professional misconduct in relation to the provision of legal services to which the agreement relates;

(c)      whether the law practice failed to make any of the disclosures required under division 3;

(d)      the circumstances and conduct of the parties before and when the agreement was made;

(e)      the circumstances and the conduct of the parties in the matters after the agreement was made;

(f)      whether and how the agreement addresses the effect on costs of matters and changed circumstances that might foreseeably arise and affect the extent and nature of legal services provided under the agreement;

(g)      whether and how billing under the agreement addresses changed circumstances affecting the extent and nature of legal services provided under the agreement.

(3)     The Supreme Court or tribunal may adjourn the hearing of an application under this section pending the completion of any investigation or decision concerning a complaint or investigation matter about the conduct of any Australian legal practitioner or Australian-registered foreign lawyer.

(4)     If the Supreme Court or tribunal orders a costs agreement be set aside, it may make an order as it considers appropriate in relation to the payment of legal costs the subject of the agreement.

(5)     Without limiting subsection (4), in making an order under that subsection, the Supreme Court or tribunal may””

(a)      apply the applicable scale of costs, if any; or

(b)      decide the fair and reasonable legal costs in relation to the work to which the agreement related, taking into account””

(i)      the seriousness of the conduct of the law practice or any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf; and

(ii)     whether or not it was reasonable to carry out the work; and

(iii)    whether or not the work was carried out in a reasonable manner.

(6)     However, in making an order under subsection (4), the Supreme Court or tribunal may not order the payment of an amount in excess of the amount the law practice would have been entitled to recover if the costs agreement had not been set aside.

(7)     For subsection (5)(b), the Supreme Court or tribunal may have regard to any or all of the following matters””

(a)      whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act;

(b)      any disclosures made by the law practice under division 3, or the failure to make a disclosure required under that division;

(c)      any relevant advertisement as to””

(i)      the law practice’s costs; or

(ii)     the skills of the law practice or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf;

(d)      the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter;

(e)      the retainer and whether the work done was within the scope of the retainer;

(f)      the complexity, novelty or difficulty of the matter;

(g)      the quality of the work done;

(h)      the place where, and circumstances in which, the work was done;

(i)      the time within which the work was required to be done;

(j)      any other relevant matter.

(8)     The Supreme Court or tribunal may decide whether or not a costs agreement exists.

(9)     The Supreme Court may order the payment of the costs of and incidental to a hearing under this section.

(9A)   The tribunal may make a costs order under the QCAT Act in relation to a hearing under this section.

(10)    In this section”” client means a person to whom or for whom legal services are or have been provided.

Note””

See also section 322(6) which extends the application of this section to associated third parties.

It may be obvious that costs can’t be recovered unless a bill has been delivered, but section 329 reminds us that we can’t start legal proceedings to recover legal costs from a person until at least 30 days after the law practice has given a bill to the person under sections 330 and 331.

A law practice may be authorised by a court of competent jurisdiction to start legal proceedings sooner if a person is about to leave the jurisdiction.

Section 329 applies whether or not the legal costs are subject to a costs agreement.

Section 330 sets out the form of a bill and again, I have set that section out in full.

330       Bills

(1)     A bill may be in the form of a lump sum bill or an itemised bill.

(2)     A bill must be signed on behalf of a law practice by an Australian legal practitioner or an employee of the law practice.

(3)     It is sufficient compliance with subsection (2) if a letter signed on behalf of a law practice by an Australian legal practitioner or an employee of the law practice is attached to, or enclosed with, the bill.

(4)     A bill or letter is taken to have been signed by a law practice that is an incorporated legal practice if it””

(a)      has the practice’s seal affixed to it; or

(b)      is signed by a legal practitioner director of the practice or an officer or employee of the practice who is an Australian legal practitioner.

(5)     A bill is to be given to a person””

(a)      by delivering it personally to the person or to an agent of the person; or

(b)      by sending it by post to the person or agent at””

(i)      the usual or last known business or residential address of the person or agent; or

(ii)     an address nominated for the purpose by the person or agent; or

(c)      by leaving it for the person or agent at””

(i)      the usual or last known business or residential address of the person or agent; or

(ii)     an address nominated for the purpose by the person or agent; with a person on the premises who is apparently at least 16 years old and apparently employed or residing there; or

(d)      if the legal costs or the basis on which they have been calculated have or has been agreed as a result of a tender process””in a way provided as part of the tender process or by later agreement between the client and the law practice.

(6)     A reference in subsection (5) to a way of giving a bill to a person includes a reference to arranging for the bill to be given to that person by that way, including, for example, by delivery by courier.

(7)     Despite anything in subsections (2) to (6), a bill may be given to a client electronically if the client requests the bill to be given electronically.

(8)     In this section”” agent, of a person, means an agent, law practice or Australian legal practitioner who has authority to accept service of legal process on behalf of the person.

In addition to the bill, there must be a written notification of a client’s rights.

In my firm, I have my files assessed by a professional costs assessor. I periodically ask for advice to ensure that my disclosure notices and costs agreements are compliant with any current cases or updates to the legislation. I consider that the area of costs and costings is an area of expertise and like any area of expertise, it is helpful to seek advice from an expert. Even if you do not wish to engage a costs assessor and rely on time costing, I would suggest to you that periodically, it would be prudent to seek information about the current law from an expert in the area.

What are the types of costs?

I refer you to Fact Sheet 3 from the Office of the Legal Services Commissioner.

Their description in relation to party/ party costs is this.

How do party party costs work?

Party Costs are intended to reimburse one party, usually the successful party, the legal costs which they have paid or owe to their solicitor where these costs have been agreed or assessed as being fair and reasonable. However, party party costs normally provide only partial reimbursement of a client’s total legal costs. It is like the gap between a doctor’s actual charge and the amount paid by Medicare. A solicitor who charges a client more than the client receives from the other party is not necessarily overcharging. If costs are awarded to you, you cannot claim from the other party more than you’ve paid or paid to your own solicitor. In some cases, mostly motor vehicle accident claims, the maximum costs payable by the other party is fixed by legislation.

Usually you would expect that the party /party costs represent about 40% of your actual out of costs.

Estimates

In the case of Setschnjak v Derek Geddes Pty Ltd (2017) QCAT 2009, QCAT considered a costs agreement.

In this case, the Applicants applied to have two costs agreements entered into with the Respondent’s set aside.

The case in QCAT was considered by then President Justice DG Thomas.

In this case there is a bolded heading called “The Law” and the court set out the matters that the tribunal could have regard to.  The references were all from the Legal Profession Act.

If a costs agreement is set aside, the Tribunal, without limitation, can apply an applicable scale of costs or decide the fair and reasonable costs.

Worth reading both this case and Wiltshire which is discussed below.

Between the client and the firms, anticipate the versions of events are quite different.

The court set out a helpful table headed “Disclosure” and provided a factual background.  The law firm had set out detailed fees and detailed outlays and provided a second disclosure notice setting out stages, ranges of fees and outlays.

The scope of work with respect to the first estimate was “acting on your behalf in relation to winding up the company, CCTV Direct Pty Ltd”.

The scope of work for the second estimate was described as “acting on your behalf in relation to Supreme Court action 2653/10 and to do all matters and things necessary to obtain the most favourable outcome for you”.

There is  helpful discussion in the case that starts at paragraph 130.

There was a concern that there was a template used for the disclosure.

Importantly, at 141, the court said:

“There is no reason why this cannot be done by way of a more generic or templated disclosure as long as the contents are prepared by reference to and specifically based upon the matter to which the retainer relates.”

At 145:

“[145]    The conclusions which I have reached regarding the estimate flow very clearly from the contents of the documents. The law practice decided to provide an estimate by reference to steps. That is evident from the documents which were exhibited to Ms Derek’s affidavit. The nature of the stages are clear from the disclosure notices and those stages, on their face, do not relate to the stages which are applicable in the litigation to which the instructions related.

[146]      I therefore find that the law practice did not disclose an estimate as was required by section 308(c) LPA.”

Paragraph 162 begins a section of the Decision headed “Consequences”.

The agreements were set aside.

If you update your estimate, you have to be able to provide an explanation to a client as to why.

Unfortunately, for practitioners and clients, it is very difficult to predict.

Two recent Decisions are helpful to practitioners in ensuring that they deal with their requirement as set out for them under the Legal Profession Act of providing estimates.  Rhonda Gay McLaren v Wiltshire Lawyers Pty Ltd [2019] QSC 305 is informative.

The retainer deals with Family Court proceedings. In 2017, Ms McLaren engaged the firm. She was dissatisfied by fees and sought different representation. She eventually engaged the Respondent who provided her with a disclosure statement and a costs agreement.

Ms McLaren engaged Wiltshires and she was given a disclosure statement and a costs agreement.  They then acted for her in a mediation and performed other work before she fell out with them over the level of their fees.

The firm then moved to secure their fees by lodging a caveat over property owned by her.

It prevented her from using the property as security for a loan to enable her to pay money to her former husband in accordance with an order of the Family Court. She applied to have the costs agreement set aside, the caveat be removed, and the proceedings brought by the Respondent firm in the Magistrates Court be stayed.

The matter was commenced in the Supreme Court rather than QCAT because of the relief sought with respect to the caveat.

The case takes us to the Legal Profession Act and section 308, section 310, 311, 322 and 328. Section 332 is also considered.

The  case considers what is fair or reasonable within the meaning of section 328.

The court referred to that definition saying:

“…it has picked up the common law test which was described by Lord Esher MR in the frequently cited case of Re Stuart; Ex parte Cathcart [1893] 2 QB 201 at [204]-[205] where his Lordship said:

“˜… the Court may enforce an agreement if it appears that it is in all respects fair and reasonable. With regard to the fairness of such an agreement, it appears to me that this refers to the mode of obtaining the agreement, and that if a solicitor makes an agreement with a client who fully understands and appreciates that agreement that satisfies the requirement as to fairness. But the agreement must also be reasonable, and in determining whether it is so the matters covered by the expression “˜fair’ cannot be reintroduced. As to this part of the requirements of the statute, I am of opinion that the meaning is that when an agreement is challenged the solicitor must not only satisfy the Court that the agreement was absolutely fair with regard to the way in which it was obtained, but must also satisfy the Court that the terms of that agreement are reasonable. If in the opinion of the Court they are not reasonable, having regard to the kind of work which the solicitor has to do under the agreement, the Court are bound to say that the solicitor, as an officer of the Court, has no right to an unreasonable payment for the work which he has done, and ought not to have made an agreement for remuneration in such a manner.” (emphasis added)'”

The case then sets out other Decisions that considered relevant principles about agreement, informed consent to the offer, which is the basis of a costs agreement.

The concern is of course the client’s vulnerability.

The agreement provided:

“2.7        All work undertaken by us may, in our discretion, be assessed by an independent legal costs consultant and our bills (tax invoices) will be issued in accordance with independent costs assessment.

2.8          In the event that we elect to engage a legal costs consultant as set out in Clause 2.7, a copy of the independent certificate of assessment will be sent with each bill (tax invoice) to you.

2.9          You agree to reimburse us for the fees charged by the legal costs consultant and these fees will be charged to you as a disbursement.”

The third component, 2.9, is a difficulty, I would say, for the firm.

The court considers the fact that they were just sent to the client without further explanation as a consideration in deciding whether they are reasonable or unreasonable.

The Respondent was said to have obligations to the client of a fiduciary nature.

Quoting from Law Society of NSW v Foreman [1994] 34 NSWLR 408 at [435]-[436], the Mahoney JA set out some propositions, which are:

“(a)    the obligations to a client exist not merely in the carrying out of an agreement already made between a solicitor and client but also in the respect of the making of it;

(b)     the contents of the obligations that is what is necessary to be done in order to discharge them varies with the circumstance of the particular case;

(c)      such obligations ordinarily at least frequently involve that the client because of the independent advice or otherwise be seen not to have entered into the agreement in reliance upon the relationship with or trust of the solicitor: that there be full and frank disclosure to the client of all information known to the solicitor which the client should know and that if there be aspects of the contract in respect of which the solicitor may be in a position of advantage with respect to the client that those matters be brought to the client’s attention so the client can decide whether or not to enter into the contract.“

The court was concerned because the firm had the capacity to incur a fee which the client had to pay but was essentially to the advantage of the solicitor.

The effect of the clauses as to “pass onto the client a cost which the client should not be required to pay”.

If you think back to the matters that the LSC was concerned about, one was that when a client exercised a right to ask for a detailed assessment that returned a higher amount, that firms habitually replaced the lower amount with the higher amount as if there was a penalty to exercising the right to seek the detailed assessment. That is in fact not prohibited, but as you could see, the LSC is not comfortable with it. In terms of this case, the requirement at the election of the law firm whether to use an assessment or not but which the client then paid for was not considered to be reasonable.

The suggestion was that the work was done for both the benefit of the solicitor and the client to ensure the client is billed a fair and reasonable amount. The court said:

“It might be said that as a fiduciary a solicitor should only bill the client a fair and reasonable amount but it does not seem to have crossed the respondent’s corporate mind.”

Next the court considered was whether she was induced to enter into the costs agreement by misrepresentation.

The court then considered whether the Respondent failed to make disclosures as required under the Legal Profession Act.  The focus here was on estimates. There were broad ranges.  An example of these were to prepare and attend mediation, $1,500 to $10,000; first mention – interim hearing to trial $10,000 – $250,000.

The issue then became when an estimate was revised the Applicant submitted that the Respondent had failed to provide timely notice to her of a substantial increase above the estimate in clear breach of section 315 of the Legal Profession Act.

The court referred to estimate in this way:

The ordinary meaning of the word “estimate” is “an approximate judgment or opinion regarding the value [or] amount’ of something” and should be adopted in the interpretation of this legislation. The nature of an “estimate” in these circumstances was considered by Fryberg J in Jezer Construction Group Pty Ltd & Ors v Conomos where he applied s 48 of the Queensland Law Society Act 1952.

In essence, just because an estimate is wrong doesn’t mean it’s not an estimate.

The Wiltshire  the costs agreement was not reasonable. It was set aside.

LSC

Most solicitors when complained about, are complained about by clients to the Legal Services Commissioner about legal costs.

Because of the importance, I have set out the information the Legal Services Commissioner sets out on their website.  They say that the most common enquiries and complaints concern:

1. failure to give adequate upfront costs disclosure;
2. failure to give adequate ongoing costs disclosure during the course of the matter;
3. a final bill grossly exceeding the original estimates;
4. failure to provide an itemised bill on request;
5. improper exercise of a lien;
6. unduly aggressive debt recovery practices.

All of the above can really be described as a mismanagement of expectations and the loss of a relationship.

The LSC  has identified billing practices that caused the LSC concern. They are:

1. the practice of substituting an itemised bill in a higher amount for an earlier lump sum bill after a client has exercised his or her entitlement to request the lump sum bill be itemised;
2. the practice of billing clients in 6 minute units of time or part thereof and proceeding to bill for many such units of time over the life of a file for work that took much less than 6 minutes and perhaps no more than 30 seconds thereby significantly inflating the lawyer’s stated hourly rate;
3. the practice of lawyers charging a care and consideration component on top of their standard hourly rate often at the lawyer’s absolute discretion;
4. the practice of charging out paralegals at rates which approximate the charge out rates for lawyers; and
5. the practice of barristers arguably double-dipping by charging clients cancellation fees for time set aside in matters that settle early when they also charge other clients for work they performed in the time that was set aside but subsequently freed up.

I refer you to some of the disciplinary decisions in relation to costs:

1. Legal Services Commissioner v Urban (2013) QCAT 521.

The Respondent was removed from the local roll required to pay the Applicant’s costs in the amount of $2,500 and to pay compensation in the sum of $6,185.

Please notice the compensation sum in relation to the impact on the practitioner.

Urban had been admitted in 1997 and had not sought to hold a practising certificate after June 2011. In November 2012, the LSC brought disciplinary charges against her.

Urban had not filed a response, appeared at directions hearing, informed the Commissioner nor the QLS of her address and correspondence to her last address had been returned.  An order for substituted service of the discipline application had been made and a notice was advertised in the Courier Mail.

The charges first related to a client where Urban purported to charge the client almost $120,000 for legal costs.

The client insisted on an assessment and the costs were assessed at $54,000.

The relevant parts are these:

“13.   Gross overcharging of the kind alleged in count 2 will constitute professional misconduct if the prevailing circumstances and the degree of overcharging warrant a finding to that effect (rather than the lesser offence of unsatisfactory professional conduct under section 418 of the Legal Profession Act).

The offending here involved an attempt to charge more than double the amount subsequently found to be fair and reasonable after a proper assessment and to take those monies from an injured client.”

In the case of Legal Services Commissioner and Diane Marie Wright, a 2009 case, the firm had acted for a party to a de facto relationship action under Part 19 of the Property Law Act.

A property was to be sold, the firm was nominated to act on the sale and charge $7,179.76 for legal fees associated with the sale. The client sought an itemised bill of costs pursuant to section 332 of the Legal Profession Act.  This was refused on the basis that Ms Anderson was not the client nor a third party payer. She lodged a complaint with the Legal Services Commission.

The Commissioner filed an Originating Application seeking declarations that Ms Anderson was a client of the Respondent or a third party payer in relation to Mr Anderson or otherwise entitled to apply for an assessment of the costs. The case turned on the issue as to whether Ms Anderson was a client when in fact the firm had acted for Mr, but the order required the firm to act in the conveyance.

For the purpose of the case, client was defined to mean a person to whom or for whom legal services are or have been provided.  The Commissioner asked the court to consider the definition as something to be construed widely.

The firm resisted any implied retainer.

Mr Conrick for Ms Wright pointed out the circumstance that one person benefits from the provision of legal services directly to another does not of itself make that first person a client of the solicitor.

The concept of an implied retainer arose if the parties “intended it to arise, in other words, if Ms Anderson and the Respondent should be taken to have intended as much”. Whether they did, depends on what may objective be ascertained as their intentions.

An important paragraph in this case is:

 “A consideration which runs strongly against implying this retainer is the provision in the consent order that the respondent’s firm would be acting on Mr Anderson’s behalf in “the conveyance of the sale of the property”. That property was Mr Anderson’s property. It is hardly surprising to hear that his solicitors would be acting in the sale. But that the parties dealt expressly with that implies that the respondent’s firm were not to be taken to be acting for anyone else. If “the conveyance of the sale of the property” extends to the distribution of the proceeds of sale, which would ordinarily be the case, then the provision would not sit comfortably with a view that following the sale proper, and during the distribution phase, the respondent’s firm would also be acting for Ms Anderson.”

And also important:

“Another consideration telling against a view that the respondent also acted for Ms Anderson following the sale and during the distribution phase is that Ms Anderson was, at the time of the consent order, separately represented by other solicitors, with no suggestion that they were to cease to act.

A further negative consideration is the prospect of conflict of interest were the respondent’s firm to be acting for both parties…. Then again, the dispute over this bill shows that in this case it was not.”

The application was dismissed, and the court determined that Ms Anderson was not at material times a client of the firm. The court then considered whether she was a third party payer as defined in section 301 of the Act.

The court determined that Ms Anderson undertook no legal obligation vis-à-vis the Respondent and that the court determined was the sort of obligation which section 301 has in mind.

The Application was dismissed.  The important thing here is that it’s not unusual for one firm to take on the sale and/or distribution of sale proceeds but the warning of this is to beware an implied retainer. See Apple v Wily [2002] NSWSC 855, paragraphs 7 and 11.

The case involving the firm of Diane Marie Wright was taken on appeal.

The appeal court determined that Ms Anderson was a third party payer under section 301(1) of the Legal Profession Act and that sufficed under section 335(2) to entitle her to apply for an assessment of the costs payable by her.

The facts were the same. Ms Wright charged $7,179.76 for work which she paid to herself from the balance of the proceeds of sale held in her trust account. Most of the burden of her fees fell upon someone who had not retained her.

The case turns on section 335 dealing with third party payers.

The term Third party payers in defined in section 301.

The obligation of Ms A to cause the proceeds of sale to be paid in various ways according to an order was enforceable against her. Because of that legal obligation to cause the proceeds of sale to be applied in accordance with the order, the relationship  has its basis and thereby its enforceability primarily from the force of the order itself as well as its contractual force.  It was an obligation enforceable not only by a money claim but by proceedings to compel compliance with the order. It follows that because of that obligation, she ought to succeed. The appeal was allowed. She was determined to be a third party payer who was entitled of such to apply for an assessment of the legal costs.

The 2007 discipline case involving Stephen Joseph Houlihan is also about costs.

This is a case where, because of the Respondent’s inaction, personal injuries claims became statute barred.

One client was Mr Clark. In this case, the ninth charge concerned the efforts of Mr Clark’s new solicitors, Travis Schultz, to extract from the Respondent a bill of costs covering unpaid work and delivery up of Mr Clark’s client file. The account and the file were requested in late July 2004. It was not until 11 October 2004 the Respondent delivered any of the material to the new solicitors. At no time did he deliver an itemised bill of costs. It became necessary for Mr Schultz to file an application in the court for an order for the delivery up of the files.

This was characterised as unsatisfactory professional conduct.

Another charge again dealt with a request for an itemised account. The Respondent failed to render an itemised bill of costs for all unpaid work and he also failed to pay out the balance of funds.  His name was removed from the solicitor’s roll.

The case of Kerry Joseph O’Neill (trading as O’Neills Business Lawyers) v Robyn Lynette Wilson is another helpful case. It’s a 2011 Decision (O’Neill v Wilson [2011] QSC 220)

The Application was dismissed by Atkinson J.

The firm provided the client with a costs agreement. An application was made to the court that the Defendant be ordered to pay the Plaintiff the sum of $34,364.46 together with costs and interest and that there be a declaration that by clause 13 of each of the costs agreements made between the Plaintiff and the Defendant, the Defendant granted to the Plaintiff an equitable mortgage, the land be charged with the payment of all amounts and that otherwise there are applications for the appointment of a trustee for sale.

The court said it seems to me too major and insuperable problems for the Applicant and they both arise from the fact that the Application is relying upon unsigned documents entitled costs agreements. These unsigned documents purport to create the equitable mortgage and charge over the Respondent’s real property.

An unsigned document will not support an equitable mortgage in spite of section 11 of the Property Law Act as it was at the time. The second problem which arises from the fact that there is no signature of the Respondent who is the solicitor’s client on the document is found in the argument that nevertheless, it may be considered a costs agreement under section 322 of the Legal Profession Act.

The solicitor relies upon subsection 322(4) which provides that a written offer for a costs agreement must clearly state it is an offer to enter into a costs agreement and the offer can be accepted in writing or some other conduct and the type of conduct will constitute acceptance. The problem for the solicitor in this case is found in the letter which accompanied the offer.  The offer, if read alone, might suffice.

Clause 2 provides if the client accepts the offer, the client will be regarded as having entered into a costs agreement. It includes that the way in which acceptance might take place, including by signing and returning a copy of it or giving the firm instructions after receiving the document of contacting the firm and advising of the client’s acceptance. However, these offers in the two matters in which the solicitor dealt with are enclosed undercover of  a letter which must be read with the offer means that at the very least it’s far from clear that the offer can be accepted in any other way than by signing and returning it.

The firm made it clear in their covering letter they would not do any work unless the disclosure notice and costs agreement was signed and returned.  Since then, it must be read with the offer “the court must not be assured that the offer clearly states that it can be accepted other than by signing and returning it”.

Again, this provides a cautionary tale for practitioners.

Costs Jurisdiction  

The Supreme Court has exclusive jurisdiction in relation to the assessment of all solicitor and client costs.  Most applications are now dealt with in QCAT.

It is important to note that on 1 July 2008 the Family Court withdrew from its role in regulating lawyer and client costs for fresh applications commenced after 30 June or where a lawyer was first retained by a client after 30 June 2008 or where the client and solicitor entered into a new costs agreement and/or retainer after 30 June 2008 in respect of applications commenced prior to that date. After that time, lawyer and client costs matters in cases under the Family Law Act became regulated by state or territory legislation governing the legal profession in the state or territory where the lawyer practices.

In the CCH textbook, the Australian Master Family Law Guide, at page 1143 also provides information you might find helpful.

Managing the client

Client management is about the management of expectations and the relationship itself.

Sometimes, that relationship, no matter what you do, will break down. That does not mean that an appropriate response on your part is to become defensive and aggressive.

In the climate of consumer rights in which we operate, it is never appropriate for you to do more than exercise your rights.

Step 1:

If you are asked for an assessment, then you have to provide the assessment and you cannot pass the costs of obtaining such an assessment to the client.  If, however, you can invite them to provide you with their concerns, you may be able to contain the dispute to the level where you can make (tape ended).

Sit down and work out the cost of the assessment versus a discount to the client. That’s simply pragmatic.  If you haven’t been paid, then you may seek to recover in a civil debt recovery process your fees. The other method is what I call a Form 60, where you apply to the court and a neutral costs assessor is appointed. If your bills are discounted by more than 15%, you pay for the costs of the neutral costs assessor. If your bills aren’t discounted by more than 15%, then the other party pays. Again, you have to have confidence in your own bills and when you use a Form 60 process, it’s not possible for them to cross-apply for other orders to complicate the process.

You can issue an equitable lien letter. You can join the proceedings as a third party creditor. Personally, I always issue an equitable lien letter and I am currently adopting the practice of joining the proceedings as a creditor.  That means the trial judge can’t make orders without reference to your rights as a creditor.

Exercise your rights, but don’t exercise them aggressively. Exercise them promptly and efficiently. If you are unable to act without being defensive and without being aggressive, contemplate hiring a filter. That might mean having Counsel settle your application to intervene in the proceedings as a creditor, or having a commercial firm act as your debt collector, entering judgment and moving to bankruptcy as required.

My attitude to cost management is that I am at my best use, highest and best value in the language of valuations, doing new work, managing current work and not looking backwards and doing debt recovery.

When you hire third parties such as a costs assessor or another firm, those are deductible costs. Your own time and energy is not available for a deduction. Also, don’t get yourself into a situation where you are stewing and not being paid is impacting on your wellbeing. Family lawyers usually give of their best to their clients and it is simply hurtful when they appear to be willing to chisel you on your fees. It can’t be helped; they’re human beings; they have no concept of anybody but themselves during these processes and you’re best to just protect yourself from your own reactions as much as you can.

Don’t become defensive. Don’t become aggressive. Add the filter if you need to.

Stay well yourself and keep working, is my advice in terms of client management.

Clients also know if they’ve sort of “˜got you’. If they think they’ve got you and they are getting a one-upmanship on you by your own reaction, then you might be feeding their own need. Beware the high conflict clients who fight each other and then turn on you and they each then turn on their own solicitors as in their pendulum they come back together as a unit.

Dealing with Solicitor and Client Costs Issues

A client can request an itemised bill. That is set out in section 332 of the Legal Profession Act.  If a bill is delivered as a lump sum bill, any person who is entitled to apply for an assessment of legal costs to which the bill relates, may request the law practice to give the person an itemised bill. The practice has to comply within 28 days.

A person can request the itemised bill only in relation to those costs the person is liable to pay and the law practice must not commence legal proceedings until at least 30 days after the date on which the person is given the bill.

If the person makes a request for an itemised bill within 30 days after receiving the lump sum bill, the law practice must not commence proceedings to recover costs until 30 days after complying with the request.

Currently, the law practice is not entitled to charge a person for the preparation of an itemised bill requested under this section. That could be a significant cost to a practice. Be aware that the preparation of itemised bills is a detailed exercise undertaken by a costs assessor. It is possible for you to prepare your own itemised bill, but remember that if you engage a costs assessor to do it, it is a tax deduction and your own time is simply time not then available to you in the undertaking of other paying work.

Solicitors can issue interim bills.

My suggestion is that you provide frequent interim bills. If a matter is a busy or high velocity matter, it may be prudent to bill more regularly than monthly. The circumstances of your own practice will inform that but a client’s capacity to retain an appreciation of the work done matched to an invoice issued is likely to be over a shorter rather than a longer time period.

If you are upfront with your client about your view as to what their desired action might cost, they may not proceed. That, however, is an appropriate outcome for them and do not become defensive when you seek to recover costs.

[1] I and I (No 2) (1995) FLC 92-625, P 82,277.

Properly constituted applications for property adjustment orders

It has been a practice of family law practitioners to draft applications and responses purportedly seeking final orders to simply seek one “final” order in terms to the effect of:

The applicant/respondent have leave to amend the application/response after disclosure has been attended to.

Most family law practitioners based in Brisbane will be familiar with some judicial officer’s approaches to application such as these:

The applicant [or respondent] file and serve an amended initiating application [or response] that sets out the orders the applicant [or respondent] seeks on a final basis.

The above order is quite frankly the only judicially appropriate approach to rectify the situation.

There is a necessary element of sympathy for some practitioners and clients.  Sometimes the non-financial spouse has next to no understanding of the composition, structure, or value of the property of the parties.  How then can a lawyer draft a properly constituted application for final property adjustment orders?

First, I will explain the reasoning behind the above judicial approach to these deficient applications.  Then I will provide a possible alternative for practitioners who find themselves unable to draft a proper application because of their client’s lack of knowledge.

The rules and the authorities

Filing an application or response described above is actually a breach of the Courts’ Rules.

Rule 4.01 of the Federal Circuit Court Rules 2001 (Cth) provides:

• Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the approved form.
• An application for final orders may include an application for interim or procedural orders.
• A person may not file an application for an interim or procedural order unless:
  • an application for a final order has been made in the proceeding; or
  • the application includes an application for a final order.

Rule 4.02 of those Rules provides:

An application must precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought.

The Family Law Rules 2004 (Cth) provide similar requirement, in even more detail: see Rule 4.01.

It is unequivocally a failure to comply with the Courts’ Rules.

Moving forward, I will focus only on the Federal Circuit Court Rules, as they are the ones most commonly applied.

Rule 4.01 provides that:

• Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the approved form.
• An application for final orders may include an application for interim or procedural orders.
• A person may not file an application for an interim or procedural order unless:
  • an application for a final order has been made in the proceeding; or
  • the application includes an application for a final order.
• If a person makes an application in a case before final orders have been made in a proceeding, the application must be made in accordance with rule 4.08.

Emphasis added.

Rule 4.03 is similarly worded regarding a response.

The approved form for an initiating application or response requires parties to, inter alia, set out the orders that they seek on a final basis.

Rule 2.04 of the Federal Circuit Court Rules 2001 (Cth) ostensibly provides that a party need not strictly comply with approved form provided that the party has substantially complied.  That is, substance over form.  The purpose and thus the substance of an application is the orders sought.

Rules 13.03A and 13.03B provide for when an application or a respondent is in default.  Amongst those subrules is the failure to “file and serve a document required under these Rules”.

Does an application or response that does not substantially comply with the approved form still constitute a document for the purpose of Rules 13.03A and 13.03B?  The answer is probably yes.

However, Rule 4.01(3)(b) is in most cases a necessary requirement to substantially comply with the Rules.  Interim orders cannot be sought unless final orders are sought.  Leave to amend an application is not a final order.  It is very much an interlocutory order.  If no final orders are sought, then no interim orders may be sought.

Rule 2.06 provides Registrars the administrative power to refuse to accept a document for filing under certain circumstances.  The reference to administrative power is important: see Valack & Valack (No. 1) [2020] FCCA 1354 and Valack & Valack (No.2) [2020] FCCA 1799.

Is an initiating application or response that does not seek final orders “frivolous, scandalous or vexatious”?  Arguably.

There is also the “jurisdictional” debate.

In Shaw & Shaw and Anor [2016] FamCAFC 159, the Full Court of the Family Court of Australia said:

[80] His Honour’s orders were:

(1) These orders are made by way of alteration of property interests pursuant to s.79 of the Family Law Act 1975 (Cth).

(2) In full and final settlement of property issues between the Husband and Wife, the assets of the [the husband and the wife] be divided between the [husband and the wife] as to 65% in favour of the First Respondent Wife and 35% in favour of the Applicant Husband.

(3) There be liberty to the [husband and the wife] to apply in relation to consequential orders.

(4) The [cross appellant’s] (intervenor’s) application is dismissed.

(5) The Applicant Husband shall indemnify and keep indemnified the First Respondent Wife in relation to any claim brought in relation to the monies referred to in these reasons as “the alleged debts”.

[81] It is undeniable that these orders do not, despite Order 1, effect an alteration of the property interests of the husband and the wife pursuant to s 79. No order requires an adjustment to the interests in the marital home nor requires the payment to the wife, or from the wife to the husband, of funds equivalent to the percentage division referred to in the orders.

The discussion about the need to provide for mechanical orders was discussed in Mullane v Mullane (1983) 158 CLR 436 by Mason ACJ, Wilson, Brennan, Deane and Dawson JJ, who held at [445]:

In our opinion, therefore, s. 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right: Stow v. Mineral Holdings (Aust.) Pty. Ltd. [(1977) 51 ALJR 672 at 679]; Reg. v. Toohey; Ex parte Meneling Station Pty. Ltd. [(1982) 158 CLR 327 at 343, 350 – 351]. It does not exclude every interest which is not assignable or transferable (cf. per Mason J. in Meneling Station [at 343]). Thus an order under s. 79 may give rise to an interest in property which is defeasible on assignment or transfer to a third party, or on the occurrence of some other event, or which the holder is enjoined from assigning or transferring.

Frost (Deceased) & Whooten [2018] FamCAFC 177 is an example of a case in which the Court held that such an objectionable order sought in an initiating application was sufficient to engage the jurisdiction of the Court.

[4] The appellants, who are the executors of the deceased’s estate, objected to the jurisdiction of the Court, asserting that the deceased had died the day before the time the Initiating Application was taken to have been filed. They also contended that jurisdiction was lacking because the orders sought in the application did not, on their face, invoke any matrimonial cause.

…

[14] The Initiating Application sought only one final order, which was:

That the Applicant Wife be excused from particularising her final orders sought until after the Respondent Husband has made full and frank disclosure in this matter.

[15] The appellants submit that this order does not identify a relevant matrimonial cause as it plainly does not seek orders altering the property of the respondent and the deceased. Thus, they argue, it follows that the Court’s jurisdiction was not invoked by the Initiating Application regardless of the time it was filed.

…

[16] We must therefore look to the material the respondent sought to file to determine the nature of the matter before the Court. In most courts that would involve an examination of the pleadings. This is because it is the substance of the dispute joined between the parties, rather than its form, which is determinative of the engagement of federal jurisdiction. …

…

[19] However, proceedings in this Court do not ordinarily proceed by pleadings but by way of application and affidavit. In the peculiar circumstances of this case, we cannot look to the affidavits because an applicant is precluded from filing them at the same time as the Initiating Application (r 4.02 of the Rules). None was filed.

[20] We must therefore look at the Initiating Application itself to determine the nature of the controversy raised by it, as that is the only material available from which to identify the parameters of the matter.

…

[29] However, at the time the application was electronically received the deceased was still alive. Accepting for the sake of the present argument that this is the relevant moment the Initiating Application was filed, we consider that as a matter of substance it sought orders in a financial case for both property settlement and maintenance – that is, orders that fell within both paragraph (c) and (ca) of the definition of matrimonial cause. Jurisdiction was thus invoked. Even if the maintenance aspect fell away on the death of the deceased, the property aspect remained.

So, whilst filing an application or response in those terms does not comply with the Court’s Rules, it will be sufficient to engage the jurisdiction of the Court.  That jurisdiction was engaged upon the Registrar accepting the application for filing (and the backdating that applies pursuant to Rule 2.05(3)).

So, what if a Registrar refused to accept the document for filing because it was an abuse of process, frivolous, scandalous, or vexatious?  That would certainly be an interesting exercise following the decisions in Valack and the Full Court’s decision in Frost.

Alternatives for lawyers with uninformed clients

Usually, an application or response can be drafted to include all the property to be retained by one party and then a cash and/or super amount to be determined and described as a fixed percentage of the pool, for example.

If a client and lawyer truly know virtually nothing about the property of the parties or either of them, and so cannot consider the division of assets, leave must be sought to dispense with the relevant rules (rr.4.01(3) and 4.02 discussed above).

For example:

[1] Pursuant to rule 1.06(1) of the Federal Circuit Court Rules 2001 (Cth), in the interests of justice the requirement for the applicant to comply strictly with rules 4.02 and 4.01(3) is dispensed with.

The client’s affidavit must be very clear about the lack of knowledge of the property of the parties to justify that dispensation.

Perhaps some certain final orders can be particularised for any or all property that is known and sought to be retained by the party and/or provided to the other party.  may be useful to include a percentage division for the remainder, however it may be inappropriate in certain cases.  For example, if one knows not the composition, structure or value of the property of the parties, how then can one know the percentage outcome which is just and equitable?

The dispensation of rules 4.02 and 4.01(3) may be justified when an urgent interim application is made for spousal maintenance or an injunction, for example.  In that situation valuations, disclosure and other relevant investigations into the composition of the pool may be unable to be conducted in time, and the conduct of the other party may have disabled the opportunity for the client or lawyer to understand what a just and equitable property division may be.

David Marcolin
Senior Associate

Aspire to the Stamp

Kay Feeney

I have a stamp. I use it for unexpected fun and nonsense.

Its use underlines the most serious of issues: we are communicators at essence.

We seek to explain choices and consequences to clients. We seek to advocate for our clients in correspondence and submissions.

We try to recognise our own vulnerability to different arguments and discipline ourselves to a best self-standard of communication. No wonder the stamp is sought but not easily provided.

The Fallacy of Post-Separation Income

Sometimes we just need to review the basic concepts.

In this article we offer an analysis of case law that hopefully will refresh your thinking about post separation income.

I always like the concepts of inertia and momentum and in a sense, the simple argument is that if the period that overlapped with the marriage generated the momentum, imposing the date of separation into the mix may not add much.

One environment for thinking about this is the adding back of legal costs. If one has paid from post separation income there may be an argument that that is an artificial concept.

I have observed that often the non-financial party goes on considering all of the other parties’ post separation is joint income, which is not a real concept.  I try to introduce the idea that once the legal obligations imposed on the party with post separation income are met, any balance can be applied as discretionary.

We have all had to deal with the distress and pain that is caused to a client by finding out the other party has spent money on a holiday.  The fact that the other party has continued with the stresses and demands of employment is not factored in.  Maybe, it is a really good investment for many reasons.

Family Lawyers have hard conversations all the time.  The goal of the case notes provided is to assist you with those conversations.

Prince & Prince (1984) FLC 91-501, 79,076 ([22] – [24]):

What are the practicalities of the matter? Unless and until a stay is ordered, the outcome of the wife’s application will depend upon findings made by the Court as to the parties’ assets and liabilities, their contributions and their respective financial resources, means and needs. It would be necessary for the Court to determine so far as is possible the value of the property held by each party. In accordance with the usual practice this would be done by deducting the value of outstanding mortgages, debts, and other liabilities (e.g. Albany and Albany (1980) FLC 90-905, p. 75,717). The Court may have to determine, as between the parties, the existence of a particular liability (Af Petersens and Af Petersens (1981) FLC 91-095).

The assessment of debts and liabilities is not necessarily arrived at by a strictly mathematical or accountancy approach in all cases. While some liabilities are charges upon the property which can be accurately assessed at a certain date, others are at large, or have not been precisely determined, e.g. tax liabilities (Kelly and Kelly (No. 2) (1981) FLC 91-108 p. 76,801).  In some cases the amount of the liability can only be estimated generally (Albany (supra), p. 75,717). The Court can make an allowance for a particular liability if appropriate to do so.  In some cases there are sufficient uncertainties as to the alleged liability to lead the Court to disregard it entirely or partly (e.g. a loan from a parent of the party not likely to be enforced; Af Petersens (supra); Quirk (1983) unreported). In other cases, the Court may take the view that because of the circumstances surrounding the incurring of the liability it ought in justice and equity to be wholly or partly disregarded in determining the appropriate order to make under sec. 79 as between the parties to the marriage. Such a result could be reached where a spouse had incurred a liability in deliberate or reckless disregard of the other party’s potential entitlement under sec. 79 (Kimber and Kimber (1981) FLC 91-085; Kowaliw and Kowaliw (1981) FLC 91-092; Antmann and Antmann (1980) FLC 90-908; Af Petersens (supra)). Complex issues can arise in regard to liabilities to third parties (see, e.g. Pockran and Crewes; Pockran (1983) FLC 91-311).

Of course, the Court cannot ignore the fact that there is or may be a liability; the effect is simply that it does not consider that the other spouse should be called upon to in effect “contribute” to the liability by having that spouse’s fair share in the parties’ property reduced by virtue of its existence. The effect may be that the party who has incurred the liability will be left to meet it out of whatever funds remain to that party after satisfying the property order made under sec. 79 (Af Petersens (supra)).

Lee Steere v Lee Steere (1985) FLC 91-626, 80,076 – 80,077

In a realistic assessment of the financial resources of the parties, it is proper to include any legal costs each of the parties may have to pay, subject of course to any reimbursements by way of an order for costs. This should not be seen as a back-door method of awarding costs to a party who has been refused the whole or part of his/her costs. It is one thing to take account of costs in calculating the net assets which are available to each party for the purpose of determining their financial resources. It is quite another thing to award a party a specific amount for the purpose of meeting certain expenditure such as costs. The latter can only be done on an application under sec 117, the former is part of the normal enquiry under sec 75(2).

Townsend & Townsend (1995) FLC 92-569, [46]:

Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule.  The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. (Cerini [1998] FamCA 143, 8 October 1998, per Nicholson CJ, Ellis, Kay JJ.)

Biltoft & Biltoft [1995] FamCA 45; (1995) FLC 92-614, [52]:

A general practice has developed over the years that, in relation to applications pursuant to the provisions of s.79, the Court ascertains the value of the property of the parties to a marriage by deducting from the value of their assets the value of their total liabilities. In the case of encumbered assets, the value thereof is ascertained by deducting the amount of the secured liability from the gross value of the asset. See, Ascot Investments Pty Limited v. Harper [1981] HCA 1; (1981) 148 CLR 337 where Gibbs J (as he then was) pointed out at page 355 that the Court “must take the property of a party to a marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or covenants that limit the rights of the party who owns it.” Where the assets are not encumbered and moneys are owed by the parties or one of them to unsecured creditors, the court ascertains the value of their property by deducting from the value of their assets the value of their total liabilities, including the unsecured liabilities.

M & M [1998] FamCA 42, [2.10] – [2.11]:

It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under s.79. (Wells v Wells (1977) FLC 90-285; Wardman v Hudson (1978) FLC 90-466; In the Marriage of Geyl 7 Fam LR 219). However, the particular justice of the case may make it appropriate to notionally add back assets which have been demonstrated to have been dissipated either during the marriage or post-separation. Normally it is necessary to demonstrate an appropriate basis for doing so, for example by wastage such as gambling or extravagant living. (Kowaliw v Kowaliw (1981) FLC 91-092; Fane-Thompson v Fane-Thompson (1981) FLC 91-053; Winnel v Winnel (1984) FLC 91-580; Townsend v Townsend (1995) FLC 92-569; Doherty v Doherty (1996) FLC 92-652.

There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the trial Judge.

C & C [1998] FamCA 143, [45] – [46]:

Although it is not one of the Grounds of Appeal, we would also like to make the observation that we were troubled by her Honour adding back into the pool of assets the sum of $15,000 provided by the wife to [A] to enable her to place a deposit on a unit.  The provision of modest amounts of capital by parents to their adult children to enable the children to get a start in life is a normal experience in our society.  In a case involving the magnitude of the assets of this case, in our view it is unreasonable to conduct a microscopic examination of each of the parties’ items of post-separation expenditure with a view to determining whether or not it is appropriate that they be brought into account in dividing up the asset pool between them.  The cases which deal with notional add-backs are generally examples of circumstances in which it would be clearly unjust and inequitable not to take those matters into account. (See Kowaliw (1981) 7 Fam LR 13; [1981] FLC 91-092, esp at FLC 76,645; Townsend (1994) 18 Fam LR 505; [1995] FLC 92-569; Farnell, (1995) 20 Fam LR 513 (expenditure on legal costs notionally added back because of s117).

Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule.  The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives.  Providing modest support for their adult children or taking not inappropriate holidays for themselves seems to fit comfortably within that description.

Chorn & Hopkins [2004] FamCA 633 (2004) FLC 93-204, [54] – [64]:

In Finlayson [2002] FamCA 898, Lindenmayer, Finn and Boland JJ said:

345. If this were a payment of his legal costs of the proceedings from the husband’s own capital resources, it would be in accord with decisions of this Court, including Farnell and Farnell (1996) FLC 92-681 and Townsend and Townsend (1995) FLC 92-569 for the trial Judge to have included this as a “notional asset” in the hands of the husband for the purposes of the s.79 proceedings. If, on the other hand, this were a payment by the husband of his costs of the proceedings from funds borrowed by him from and still owing to a third party, the appropriate course would have been to disregard both the payment and the debt to the third party in calculating the total net property of the parties for the purpose of the s.79 proceedings. Alternatively, if the payment were brought to account as a “notional asset”, then the liability of the husband to repay the debt would also have to be taken into account in arriving at the net property of the spouses.
346. It was thus relevant for the trial Judge to consider and determine whether this payment of the husband’s costs from funds provided by Integrand was a payment by a third party creating a debt owing by the husband to it (as the husband asserted) or, in actuality, a payment by the husband from his own resources to be added back to the property pool as “notional property” prematurely distributed to him.

This decision appears to confirm the principle that where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to add back those costs as a notional asset. It also confirms the principle that where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account. The decision also supports the proposition that where it is determined that a payment of legal fees should be taken into account as a notional asset, any outstanding liability in respect of those fees should also be taken into account.

In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.

If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.

If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.

Outstanding legal fees themselves are generally not taken into account as a liability.

If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.

In light of our review of the authorities, we consider that his Honour, with respect, over-simplified the matter when he said in paragraph 16 of his judgment that there was an “increasingly accepted practice of adding” paid legal fees as an asset.  Out of fairness to his Honour, it is true that he did refer to the source of the money used to pay the fees, saying that it “clearly came from business earnings.”  However, we think that he needed to go further and satisfy himself that those earnings existed at separation or that the wife had some interest in them.

Furthermore, in light of our review of the authorities, there would seem to be substance in the husband’s complaint that if his Honour determined that the fees paid should be added back, he should also have deducted the liability incurred by the husband in borrowing to pay at least part of the fees – although the evidence as to how much of the payment for legal fees was borrowed is not entirely clear (see paragraph 44 of the husband’s affidavit sworn 14 May 2002).

In considering his Honour’s approach to the husband’s paid legal fees, it needs to be borne in mind that his Honour also added back as a notional asset the wife’s paid legal fees of some $36,000.  It would seem, from what his Honour said at paragraph 12 (b) and (c) of his judgment, that the bulk of the wife’s paid legal fees could be sourced to “joint” property and thus properly added back.  However, the position would seem to be otherwise in relation to the dividend from her father’s company referred to in paragraph 12(a) of his Honour’s judgment.  But there is no cross appeal by the wife.

On balance, we consider that given the treatment of the wife’s paid legal costs (particularly to the extent that they could be sourced to the dividend from her father’s company), it was open to his Honour to include the paid legal expenses of the husband.  He was, however, in error in not having some regard to the liability incurred for the purposes of paying those fees, although as we have indicated the evidence in relation to that matter was not entirely satisfactory.  Thus, we are prepared to conclude that grounds 7 and 8 have some substance.  However, we would only be prepared to interfere to the extent that the liability incurred by the husband to pay the fees should be taken into account; but we would require submissions as to the exact amount of that liability.

Gollings & Scott [2007] FamCA 397, [68]:

As a general rule once the parties have separated, subject to obligations of maintenance and support, and subject to the type of considerations described in Kowaliw (1981) FLC 91-092 relating to waste, each party is entitled to get on with his or her life independent of the other. The husband would be free to go about spending the money he earned post-separation in the furtherance of his relationship with Ms Y if he chose to do so providing that at the same time he properly met his obligations towards his wife and children for their due support. It would not normally be appropriate some years after separation to require each of the parties to account for any monies they had spent post-separation so as to determine whether or not that expenditure was reasonably necessary for their own self-support, and to the extent that it was not, to determine whether it would be proper to add it back into the pool of assets available for division between the parties. As we have said, the matter is clouded in this case because of the nature of the concession made as to the equality of contribution both prior to and post-separation. The pool of assets to which the husband was prepared to make that concession did not include in it any monies spent by him on the F property. It is doubtful that one can properly bind the husband to a concession that would have the effect of entitling the wife to claim an equal share of all monies earned by the husband post-separation.

Beklar & Beklar [2013] FamCA 327, [131] – [148]:

In Kowaliw & Kowaliw (1981) FLC 91-092, Baker J determined that financial loss incurred by the parties in the course of a marriage, whether or not a joint liability, should be shared between them except in the following circumstances:

• where one of the parties embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
• where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

If the losses occurred in the course of the pursuit of the objectives of the marriage, for example, gaining income and/or assets, then such losses should be shared by the parties, although not necessarily equally.  Kowaliw has received widespread appellate support.

In Browne v Green (1999) FLC 92-873, the trial judge determined that the husband should bear full responsibility for losses incurred by a failed business because he alone initiated the venture and had control over it. There was no suggestion of recklessness on his part, nor a course of conduct designed to reduce the asset pool. Essentially this case involved a promising business venture that went sour. In placing the full burden of the loss on the husband, the Full Court determined that the trial judge erred.

The issue of whether the loss should be notionally added back into the asset pool, whether it constitutes a s 75(2) factor or whether it should be dealt with another way is complex and discretionary.  In Townsend & Townsend (1995) FLC 92-569, the Full Court determined that wasted property should be notionally added back. Simply put, after separation the husband in Townsend sold the parties’ most valuable asset.  He had the benefit of the money and none of the sale proceeds remained.  The Court found that this was a premature distribution of marital property and that it would be unjust to merely consider such conduct pursuant to s 75(2).

In B and B [2000] FamCA 1301, the Full Court made it clear that notional adjustments are not limited to wasted assets but may also include identified items of property that have been bona fide disposed of. Also, at [75] it was said that “[i]t may also be appropriate, depending on the circumstances, to notionally include in the pool of assets items of property in respect of which no or no reasonable explanation has been given for the assertion that they no longer exist or never existed”. As a general approach, the Court has been reluctant to notionally add back assets where monies that existed at separation have been spent on reasonably incurred living expenses; the point being that parties are entitled to continue to provide for their own support: M and M [1998] FamCA 42.

In M and M, Baker, Kay and Chisholm JJ said at [2.10]:

It is well settled that save in exceptional circumstances a trial Judge should deal with the property as at the date of the hearing and make adjustments taking into account the various matters set out under s.79. (Wells v Wells (1977) FLC 90-285; Wardman v Hudson (1978) FLC 90-466; In the Marriage of Geyl 7 Fam LR 219). However, the particular justice of the case may make it appropriate to notionally add back assets which have been demonstrated to have been dissipated either during the marriage or post-separation. Normally it is necessary to demonstrate an appropriate basis for doing so, for example by wastage such as gambling or extravagant living. (Kowaliw v Kowaliw (1981) FLC 91-092; Fane-Thompson v Fane-Thompson (1981) FLC 91-053; Winnel v Winnel (1984) FLC 91-580; Townsend v Townsend (1995) FLC 92-569; Doherty v Doherty (1996) FLC 92-652.   

In C and C [1998] FamCA 143, the Full Court said that where the monies have been shown to have been reasonably disposed of, the notional add back approach should be the exception and not the rule.

Before consideration is given to the submissions in relation to paid legal fees, it is appropriate to deal with the husband’s argument that $78,000.00 should be notionally included as the wife’s asset.  According to him these funds were deliberately or recklessly dissipated.

It will be recalled that in the weeks prior to separation the wife secretly withdrew $200,000.00 from the AMP line of credit.  From the draw down $121,714.58 was used for legal expenses in these proceedings.  At issue is the remaining $78,000.00.  At paragraph 109 of her affidavit filed 19 November 2012 the wife explained her application of the remaining amount as follows:

• Honda motor vehicle – $43,528.00;
• children’s school fees and extra curricular activities – $17,304.12; and
• replacement appliances and household goods – $23,030.00.

The wife clearly accounts for expenditure greater than the $78,000.00 under consideration.  At the same time, as she incurred these expenses, the wife had the full-time care for two children who at separation were six and three.  She did not have paid employment and notwithstanding the husband’s evidence which he says would result in the Court finding this expenditure was extravagant, even in the context of the total sum he provided after separation, it was nothing like that.  The amount will not be notionally added back.

In relation to the treatment of paid legal fees, the most current and complete expose of principle is found in Chorn & Hopkins (2004) FLC 93-204. Writing ex judicially, Boland J correctly summarised the principles that emerge from that case as follows:

• The treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge.
• In determining how to exercise that discretion, regard should be had to the source of funds.
• If the funds used existed at separation and are such that both parties can be seen as having an interest in them (on account, of contributions) then such funds should be added back as a notional asset of the party, who has had the benefit of them.
• If the funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be notionally added back as a notional asset; nor would any borrowing undertaken by a party post-separation for payment of fees be taken into account as a liability in the calculation of the net property of the parties.
• Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
• Outstanding legal fees themselves are generally not taken into account as a liability.
• If in the exercise of discretion it is determined that legal fees already paid should be taken into account as notional assets, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account. (Trends in the Full Court: Recent cases” 9th Australian Family Lawyers’ Conference, Sabah 11-13 June 2005)

The key factors that appear to have general application are the emphasis on the source of the funds and an approach which delivers a just outcome.  In particular, whether the funds received were through one party’s efforts alone or in his or her own right came from assets in which both parties had an interest, and whether the funds were acquired pre or post separation.

To Boland J’s summary, reference should be made to their Honour’s remarks, at [45], in relation to DJM v JLM (1998) FLC 92-816. DJM v JLM relevantly concerned whether or not to add back legal fees which the husband had been ordered to release to the wife to enable her to prosecute the proceedings.  Their Honours in Chorn and Hopkins said “[i]n those circumstances it could be expected that the fees would be added back”.

Nine months after Chorn and Hopkins in AJO & GRO (2005) FLC 93-218 a differently constituted Full Court discussed notional add backs and paid legal fees. Their Honours in AJO & GRO referred to two of the numerous authorities discussed in Chorn and Hopkins but did not address Chorn and Hopkins.   Thus, although one sees in AJO & GRO support for the proposition, at [30], that the “normal approach ought to be to add costs already paid into the pool”, as the review of authorities in Chorn and Hopkins makes clear, to elevate prior decisions made in one context to a “normal approach” in all contexts, ignores the variety of scenarios that result in the payment of legal expenses.   Thus, to the extent counsel for the wife suggested that I would prefer the approach in AJO & GRO to Chorn and Hopkins, the argument fails.

Counsel for the wife argued that unless the Court adopted an “add back” approach to both parties’ paid legal expenses, injustice would be visited on the wife.  The point being, that if her paid legal expenses were added back (they being paid from the line of credit, funds provided by the husband and borrowed from her family) but the husband’s were not (they being paid from post separation income), he would have the benefit of significant post separation income and take his property settlement in kind, whereas a significant component of her property settlement would be legal fees.  In response to my suggestion that par 58 of Chorn and Hopkins suggested the husband’s paid legal expenses should not be added back and that the potential for injustice could, if necessary, be avoided by the application of s 75(2)(o), counsel for the wife said such an approach tended to be amorphous and lacked the transparency achieved if the amount was simply added back and redistributed.

It is unnecessary to recite the plethora of cases where pursuant to s 75(2)(o) an adjustment in relation to a particular transaction has been made. The transparent and concrete example sought by counsel for the wife was achieved, for example, in De Angelis v De Angelis (2003) FLC 93-133. In that case the trial judge found that the wife had gambled away $90,000.00 of the parties’ joint funds and rather than adopt the Townsend approach, dealt with the loss under s 75(2). In re-exercising the Court’s discretion the Full Court reaffirmed the use of s 75(2)(o) and ordered the wife to pay the husband an amount equivalent to half of the joint money she lost gambling.

Counsel for the wife relied on the recent Full Court decision Kasiopoulos & Garapiperis [2012] FamCAFC 85. In this case, the trial judge added back the husband’s paid legal costs notwithstanding they were paid from income and bonuses earned after separation. Here, the trial judge mistakenly recorded that the husband agreed to have his paid legal fees added back. In seeking to resist the husband’s appeal on this point, the wife was unsuccessful in her attempt to show that the source of funds used to pay the husband’s legal fees was contentious. In short, the Full Court accepted that the evidence demonstrated that the husband’s legal fees were paid from post separation bonuses and income. In the course of doing so, at [91], their Honours said:

…Although the trial Judge could have added back the husband’s paid legal fees, notwithstanding that they were paid out of income, having not done so on that basis, we feel obliged to uphold this complaint.

It is upon these remarks that counsel for the wife relies to support the contention that the husband’s legal fees in this case should be included in the list of the parties’ property.  However, there is no discussion in Kasiopoulos & Garapiperis of the authorities in relation to the treatment of legal expenses.  If the remarks are intended to convey that there is no explicit statutory prohibition against the course adopted by the trial judge, one could not disagree.  However, if those remarks are intended to convey well settled principle or indicate how this type of payment could be categorised as property, I am unable to agree.  In my view, the weight of authority is against the approach referred to in Kasiopoulos & Garapiperis.

Adair & Milford [2015] FamCAFC 29, [36] and [47]:

36. Because the husband did not give evidence about the amount of taxation due at separation and notwithstanding various estimates calculated by his accountant and attempts at the same exercise by his counsel, the primary judge was satisfied that the best evidence was to be found in his financial statement filed in October 2012 in response to the wife’s application for interim spousal maintenance and some two months after separation. The husband’s evidence given in answer to question 48, which enquired about assessed and unpaid income tax, that he owed $220,000 was accepted [169]. There can be no doubt that when his Honour went on to find that after separation the husband’s taxation liability “increased significantly” he was satisfied that between separation and the date of the hearing, the tax debt had increased from $220,000 to $419,000.

…

47. There is no principle of general application that merely because a taxation debt accrued prior to separation it must be brought to account as a joint matrimonial liability (Trustee of the Property of G Lemnos, a Bankrupt & Lemnos and Anor (2009) FLC 93-394). In our view, the facts as found amount to what the Full Court in Johnson and Johnson (2000) FLC 93-039 described as “compelling circumstances” which would enable the court to leave one party solely responsible for his or her taxation debt.

Vass & Vass [2015] FamCAFC 51, [138] – [139]:

There is no error committed per se in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties.  We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 – or, more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 – is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this court and at first instance may need to be reconsidered.

The decisions referred to seek to remind the Court that, however the exercise of discretion might seek to deal with property that is said to be the subject of “add back”, proper consideration must be given to existing interests in property, and the question posed by s 79(2) as a separate inquiry from any adjustment to property interests by reference to s 79(4) if a consideration of s 79(2) reveals that it is just and equitable to alter existing interests in property.

Zabarac & Zabarac and Anor [2016] FamCAFC 186, [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:

115. 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.

Tobey & Rezek [2017] FamCAFC 84, [35] – [40]:

The primary judge concluded:

59. In any event, if the amount of $115,547.50 represented in the integrated client account is provisional tax for the current year, it is clear that that is an amount which has been provisionally assessed on income to be earned in the relevant taxation year, which is well after separation.
60. I have included in the abovementioned asset table the income tax debt of $9366.23. Although the evidence does not clearly disclose when that debt came into existence, or how it came into existence (that is to say whether it was incurred as a result of the earning of pre-separation income), I am satisfied of the existence of the debt.  However, the balance of the alleged tax debt, given that it seems to be a provisional assessment for future income to be earned by [Mr Rezek], I have excluded from the asset pool.

The evidence of the appellant’s Financial Statement supports his Honour’s finding that the provisional taxation liability arises from income earned and retained by the appellant well after separation.  Despite the appellant’s assertion that the court should take the assets and liabilities of the parties as they find them, we perceive no error in his Honour’s approach that the respondent not bear any responsibility for the appellant’s post-separation income tax.

To the extent that the precise nature of the tax liability is not known, it was up to the appellant to adduce adequate evidence properly to explain his liabilities (Adair & Milford [2015] FamCAFC 29).

The fresh evidence, namely the judgment in favour of the Deputy Commissioner of Taxation and service of the bankruptcy notice, does indicate that the sum referred to in the “Integrated client account” did, at some stage, become a firm liability.  However, neither document explains the nature of the liability or when it was incurred.  Thus, the position remains, as best as can be determined from the evidence, that the liability arose from post”‘separation income.

Thus, even in the light of the further evidence, the decision of the primary judge correctly states the position, as far as the evidence permits.

We do not find any merit in this ground.

Rankin [2017] FamCAFC 29, [54] – [55]:

In view of these passages, the primary judge concluded:

136. 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.
137. 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].
138. 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).
139. 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.

140. 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.

…

167. Further I am satisfied for the reasons set out herein that prior to disbursement of the sale proceeds the sum of $170,000 should be paid to the wife’s solicitor on account of her legal costs.

As appears from [129] of her Honour’s reasons, the sum of $230,000 is the approximate total of the $167,702 paid to Belleli King and the $59,800 paid to barristers by the husband.  The husband did not challenge the primary judge’s finding at [138] that “income which otherwise would have been available to support the wife and the children was applied to the payment of his legal fees”, contrary to orders of the court and the provisions of the Assessment Act. Thus the matter was not simply about the husband dealing with his post”‘separation income as he saw fit.

By Kay Feeney and David Marcolin

Child Relocation

The law recognises “the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis”, however the rule is not absolute.[1]

A parent does not have the right to unilaterally change the location of the child on the basis that the child lives with that parent more than fifty per cent of the child’s time.[2]

The Court has no power to order a parent to live in a particular state, city, town or place over another.  The jurisdiction of the Court is limited to the place of residence of the child.

The approach to relocation cases are simple.  It is the same approach taken in any other parenting matter concerning the living arrangements for children.  The legislative pathway does not change.  The Court is not bound by the parties’ proposals.[3]

What is difficult is determining the case.  And as a result, making the arguments in support of either the relocating parent or the parent left behind.

It is a balance of the best interests of the child and the right to freedom of movement enshrined in the Constitution.[4]  Of course, the best interests of the child is the paramount consideration.[5]  But paramountcy does not equate to sole.[6]  It is only where the best interests of the child are at fundamental odds with the parent’s constitutional right to decide where to live when that right is subjugated.

Given the paramountcy principle, the true difficulty is balancing the competing factors relevant to determining the child’s best interests.  The benefits of the relocating parent must be held against the disadvantages to the child, which are usually represented by the adverse impact on the child’s relationship with the parent left behind.

Much of that difficulty stems from the fact that to take a child from the place where one of the parents lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop.[7]

It will often be that the same body of evidence in a relocation case may provide opposite but reasonable conclusions depending on the decision maker.[8]

Substantial rules of evidence do not apply in Part VII proceedings,[9] including the rule against hearsay,[10] the rule against opinion[11] and rules concerning documentary evidence.[12]  Section 69ZT does not, however, fetter the Court’s discretion on the weight to be attributed to evidence admissible by virtue of that section.[13]

The importance, and in some cases necessity, of expert evidence cannot be underestimated.

Admissibility of evidence does not guarantee any weight will be ascribed to it by the Court.  In Santariga & Farris [2020] FamCAFC 241 the primary judge placed substantial weight on and accepted the mother’s evidence of the likelihood she would be forced into receivership or bankruptcy should she have to relocate.  The Full Court held there was insufficient evidence to support the finding.[14]

A typical scenario in a relocation case is for one parent to propose the child live with them in one place but proffer alternate living arrangements in the event the Court “does not permit the relocation”.  The plethora of authority on this topic reminds us of a very important point of law: procedural fairness.  The Court must consider the proposals and arguments of the parties.  Where a fall-back position is submitted, the Court must first consider the primary proposal.  Sometimes only if that is rejected should the fall-back position be considered.  For example, in U v U [2002] HCA 36 Gaudron J said:[15]

Another aspect of the argument put with respect to the first ground of appeal, was that the trial judge should have first decided between the mother’s proposal that N reside with her in India and the husband’s counter-proposal that N live with him in Australia and, only if it was decided that, as between those proposals, N’s interests were better served by living with her father, should consideration have been given to his alternative proposal that N live with her mother in Australia.

There may well be cases where, because of the way the issues have been framed or the case conducted, procedural fairness requires that a particular proposal should be considered only if another is positively rejected. So, too, it may be that the issues are such that it is only necessary to consider a particular proposal if others are positively rejected…

Strategies may be developed on the proposition that a parent unwilling to relocate where the other is willing to stay can influence the Court’s decision against the flexible parent.  As a point of law, this should not be the case.  The unwillingness of a parent to move cannot be determinative of the parent’s capacity to move.  The Court is concerned with options, and not mere preferences.  Evidence must establish the parent’s incapacity to move.  In Deiter & Deiter [2011] FamCAFC 82 the Full Court held:[16]

We considered his Honour erred in accepting, as in any way determinative, the fact the father would be “unlikely” to move to Perth if his application was unsuccessful. As his Honour himself said … if the outcome was that the best interests of the children required them to remain in Perth, “the Father would have a significant decision to make”. It is therefore less than clear to us why, in the very next paragraph, his Honour appears to accept as determinative that the father was unlikely to move to Perth.

Hayne J said in U v U [2002] HCA 36:[17]

When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.

The need to consider proposals is a matter of procedural fairness.  A party is permitted to put alternate proposals to the Court contingent on the Court’s findings or otherwise.  Conflation of proposals, evidence and concession must be avoided.  In Heaton v Heaton [2012] FamcCAFC 139 the Full Court held:[18]

His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.

Reference to labels such as proposals and fall-back positions are unhelpful, exemplified by the preceding judgments.  Submitting a fall back position, or a conditional proposal, at the same time as the primary proposal is a matter of convenience and the Court ought not consider a party’s alternate position until it is necessary to do so.  This may be once the primary proposal has been considered and dismissed.[19]

It is common to hear of categories of “relocation cases”: local, intrastate, interstate, etc.  It is important to keep in mind that it is not distance per se which should be the determinative criteria but the consequences of the relocation.[20]  As Boland J eluded in Morgan & Miles [2007] FamCA 1230:[21]

… The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship.  Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered. 

It is trite law that a parent proposing or justifying a relocation need not demonstrate compelling reasons.[22]

The Full Court set out a list of relevant considerations in “relocation cases” in A v A: Relocation approach [2000] FamCA 751:[23]

The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

It is necessary for a court to evaluate each of the proposals advanced by the parties.

A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “˜permitted’.”

The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.

It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.

The object and principles of s60B provide guidance to a court’s obligation to consider the matters in s68F(2) that arise in the context of the particular case.

It is to be expected that reasons for decision will display three stages of analysis and:

A court will identify the relevant competing proposals;

For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;

As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child’s best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue.  Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent.

On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

The process of evaluating the proposals must have regard to the following issues:

None of the parties bears an onus:

In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child.  That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

The importance of a party’s right to freedom of movement:

In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party’s rights under s92 of the Constitution, where applicable.

In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity.  If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

Matters of weight should be explained:

In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

Interim relocation cases are particularly difficult to predict an outcome because of the inability to test controversial evidence, and as a result, a Court cannot make findings about disputed facts.[24]

In C & S [1998] FamCA 66 Warnick J (with whom Ellis and Lindenmeyer JJ agreed) discussed the issues confronting the relocation of children’s residences before the issues can be determined at trial:

In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a relocation, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the children or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.

In other words, you don’t put the cart before the horse.  To incontestably justify rejection of interim relocations on this premise is to fall into error.[25]

Morgan & Miles [2007] FamCA 1230 concerned the unilateral decision of a mother to relocate the child’s residence some 144 kilometres away prior to an interim hearing.  After reviewing the principles underpinning “relocation cases” and the 2006 amendments to the Family Law Act 1975 (Cth), Boland J emphasised the jurisprudence expounded by Warnick J in C & S:[26]

… Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation.  It is illogical to suggest it is appropriate for an unauthorised unilateral move to occur, and that a court’s discretion in determining a child’s best interests, including time to be spent with the other parent, be inappropriately fettered by a move which has already occurred.

His Honour then explicated the requirements of a trial judge considering an interim relocation:[27]

Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

Interestingly, in Morgan & Miles Boland J dismissed the appeal because the trial judge addressed each of the legislative requirements in that he:[28]

set out the general terms of the parties’ competing proposals for final orders;

identified  contested factual issues which he could not determine on an interim basis including how much time or how often the father saw T after school; and

had regard to matters relevant to the children’s best interests under s 60CC including:

their primary care by the mother pre and post separation;

the fact that the children regularly each Thursday stayed with the paternal grandmother, and saw the father that evening, and that the elder child had seen the father after school for some period;

the ages of the children and the level of time spent with the father and paternal family which occurred prior to the mother’s unilateral move;

the provisions of the parenting agreement including the collection of the children from school and pre-school;

the effect of the unilateral move by the mother after the father’s application was filed;

Gave most weight to matters relevant to the primary considerations namely the maintenance of a meaningful relationship between the children and the father, and concluded on an interim basis, that the mother should return the children to the small town, subject to provision of suitable housing.

So, the conclusion is simple and complex: it is simply about the best interests of the child, which can be overwhelmingly complicated to determine.

David Marcolin

Solicitor

[1] A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ) at [75] adopting the statement of Kirby J in AMS v AIF [1999] HCA 26 at [146].

[2] Morgan & Miles [2007] FamCA 1230 at [55].

[3] U v U [2002] HCA 36 at [80] (Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed).

[4] Commonwealth of Australia Constitution Act 1900 s 92; A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ) at [92] adopting the statement of Kirby J in AMS v AIF [1999] HCA 26 at [191].

[5] Family Law Act 1975 (Cth) s 60CA.

[6] A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ) at [64]; AMS v AIF [1999] HCA 26 per Kirby J at [193]; U v U [2002] HCA 36 per Kirby J at [159].

[7] U v U [2002] HCA 36 at [170] per Hayne J.

[8] CDJ v VAJ [1998] HCA 67 (McHugh, Gummow and Callinan JJ) at [140].

[9] Family Law Act 1975 (Cth), s 69ZT(1).

[10] Evidence Act 1995 (Cth), Part 3.2.

[11] Evidence Act 1995 (Cth), Part 3.3.

[12] Evidence Act 1995 (Cth), Part 2.2.

[13] The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying: Family Law Act 1975 (Cth), s 69ZT(2).

[14] Santariga & Farris [2020] FamCAFC 241 at [68].

[15] U v U [2002] HCA 36 at [33] and [34].

[16] Deiter & Deiter [2011] FamCAFC 82 at [97] (Finn, Thackray & Strickland JJ).

[17] U v U [2002] HCA 36 at [175].

[18] Heaton v Heaton [2012] FamcCAFC 139 at [32] (Coleman, Ainslie-Wallace & Ryan JJ).

[19] U v U [2002] HCA 36 at [175] (Gaudron J).

[20] Morgan & Miles [2007] FamCA 1230 at [91].

[21] Morgan & Miles [2007] FamCA 1230 at [91].

[22] AMS v AIF [1999] HCA 26 at [47] (Gleeson CJ, McHugh and Gummow JJ), [92] (Gaudron J), [191] and [192] (Kirby J), and [209] (Hayne J); see also A v A: Relocation approach [2000] FamCA 751 (Nicholson CJ, Ellis and Coleman JJ).

[23] A v A: Relocation approach [2000] FamCA 751 at [108] (Nicholson CJ, Ellis and Coleman JJ).

[24] Goode & Goode [2006] FamCA 1346 at [73] and [74] (Bryant CJ, Finn and Boland JJ); Edgar & Strofield [2016] FamCAFC 93 at [15].

[25] Browne v Keith [2015] FamCAFC 143 at [29].

[26] Morgan & Miles [2007] FamCA 1230 at [55].

[27] Morgan & Miles [2007] FamCA 1230 at [79].

[28] Morgan & Miles [2007] FamCA 1230 at [102].

Major long-term issues vs issues that are not major long-term issues

Parents who have equal shared parental responsibility for a child must make decisions concerning the major long-term issues for the child jointly.  Section 4 of the Family Law Act 1975 (Cth) defines “major long-term issues”.  Sections 65DAC and 65DAE define the consequences for people who share parental responsibility.

In the course of a child’s lifetime parents will typically make countless decisions for the child.  Some will concern major long-term issues.  Many will not.  There are some issues which may be difficult to discern whether they concern major long-term issues or not.

Thus, disputes often arise whereby one parent argues the consent of the other parent is unnecessary, and the other parent leans on the order for equal shared parental responsibility.

This short paper does not answer questions.  It asks them.  The utility of asking these questions is that it informs arguments.  Courts do not offer generic guidance on this topic.  They only resolve disputes having regard to all the circumstances of the particular case and considering the child’s best interests as the paramount consideration.

I will use this example.  A parents wishes to facilitate a child undertaking a scuba diving course.  The second parent becomes upset because the course falls on the day on which the child would be with that parent.  The second parent, although not consulted, refuses to give consent.  The first parent understands the concern and organises the course on a day the child would be with the first parent.

The second parent, citing concerns the child is not old enough, argues that attending or completing the course represents an inherent danger or risk of harm to the child.  The parents are in dispute.

Is the first parent permitted to make the decision unilaterally?  Is there some other reason why the second parent’s consent is necessary?

The answer to the first and the last question can be answered in two contexts.

The first is whether the unilateral decision might be a contravention of the order for equal shared parental responsibility.  The Act separates decisions made in relation to children as either major long-term issues or issues that are not major long-term issues.  The former is the subject of an exercise of shared parental responsibility.  The latter falls within the category expounded by section 65DAE of the Act.  In order for it to be a contravention the decision must have concerned a major long-term issue.  Simple.  Those two categories also enlighten the answer to the first question because where an order provides for shared parental responsibility, either section 65DAC or section 65DAE apply.  The former requires a joint decision, the latter does not.

The second context is much more nuanced.  Just because a parent is empowered to make a unilateral decision (deriving from the parents’ “power” inherent in section 61B of the Act) does not make that decision in the best interests of the child.  A parent could apply for a parenting order on the discrete point.  A section 60I(8) certificate will be required unless an exception in subsection 60I(9) applies.  To explore this concept, one must step into the application before the Court.

A decision made by one parent before one can be made by the other, which impacts on the efficacy or ability of the second parent to make their decision is likely a major long-term issue.

Important considerations are the extent, duration and intensity of the course; and the implications that arise out of completion of the course.  For instance, is it like going to South Bank for an ice cream on Sunday, or is it more analogous to undertaking a course of study – a certificate in hospitality, for example.

Disputes about the latter, which probably fall into the education category, often arise where one parent wants the child to do A and the other parent says the child should do B.  Doing both can be a major long-term issue if but only because the child would be undertaking too much at one time.  A decision made by one parent before one can be made by the other, which impacts on the efficacy or ability of the second parent to make their decision is likely a major long-term issue.

Which sport a child should play can be a major long-term issue.

The explanatory memorandum to the 2006 amendments to the Act suggests the purpose of requiring joint decisions on only big ticket issues limits disputes about the minor issues.  The necessary implication there is that parents are free to unilaterally make minor decisions.  But if one parent’s minor decision compromises the capacity of the other parent to make a minor decision, is it no longer a minor decision?

Is this a course which the child has been undertaking for some time already?

There is a significant gap in the legislation and the authorities about what constitutes the decisions the subject of equal shared parental responsibility.  

Is it a steppingstone to a more advanced course or a long-term activity which might be a major long term issue?  If it is, then if the second parent does not consent to that advanced course or activity should this course not fall within the category of the advanced course having a sufficient nexus to the decision for the child to complete this course?

Even if the above disapproval is only for a short period of time and the advanced course or activity could be attended in the future, is the unilateral decision to allow attendance at the course now, where there is an inability to participate in an advanced course or activity immediately after, sufficient cause for dispute and conflict such that the implications are major and long-term?

There is a significant gap in the legislation and the authorities about what constitutes the decisions the subject of equal shared parental responsibility.  Of course, it is “major long-term issues”.  But the Act (and the authorities) discuss only that phrase versus “decisions that are made in relation to the child during that time [the child is with one parent] on issues that are not major-long term issues”.  Section 65DAE provides a note: “This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long”‘term issues.”

There is no strict interpretative gap between decisions concerning major long-term issues on the one hand and decisions concerning issues that are no major long-term issues on the other.  The gap to which I referred is categorised by the examples of each: which school a child should attend on the one hand, and what a child should eat for dinner on the other.  That gap could be conveniently defined as “what constitutes a major long-term issue?”.

It is that gap that underscores and contextualises a dispute.  Where one parent has expressly disapproved a decision concerning an issue that might be a “grey area”, does that lend interpretation favouring a major-long term issue?  If one party asks for consent, does that imply it may be a major long-term issue?

Or is the “gap” meaningless unless and until one party makes an application for the Court to determine the issue not on the basis that it is a major long-term issue, but as a discrete parenting order?

There is a benefit to the child of the Court simply dealing with the dispute.  Equally, there is a benefit to all children for Courts to set precedents that such litigation will not be entertained.  

Courts make orders concerning issues that are not apparently major long-term issues all the time.  There is no jurisdictional requirement that the issue in dispute be a major long-term issue in order for the Court to hear and determine the dispute.  It could be simply a best interests question.

That begs the question, however, whether an issue in dispute that is not a major long-term issue warrants the imposition to the child of further litigation and consequently whether the Court should entertain the application.  On that logic, it should categorise the issue as a major long-term issue before it subjects the child to that litigation.   See the Chief Justice’s remarks in Rice and Asplund (1979) FLC 90-725.

There is a benefit to the child of the Court simply dealing with the dispute.  Equally, there is a benefit to all children for Courts to set precedents that such litigation will not be entertained.  One is then faced with the difficulty of reconciling the paramount consideration with public policy.

There is no way to better define what will constitute a major long-term issue.  The Full Court approves the expansion of the definition of major long-term issues in the Act: see DeLuca & Farnham [2019] FamCAFC 100 at [47].  However, there is a reason Courts obfuscate defining the phrase beyond that contained in sections 4, 65DAC and 65DAC of the Act – it is entirely dependent on the circumstances of the case.

David Marcolin

Solicitor

Section 121

We were recently asked to give advice to a client wanting to pursue payment of a judgment debt from a former partner who had been declared bankrupt. To do so we were asked if they were able to provide the judgment and reasons of their family law matter to their accountant and subsequently the trustee in bankruptcy. Additionally, we were asked to provide advice surrounding the calculation of interest on the judgment debt which we discuss HERE.

In the Federal Circuit Court and Family Court, the publishing of material from those proceedings are strictly anonymised. Any publication or dissemination of any identifying information is strictly prohibited, and a person can be subject to punishments including a year of imprisonment.[1]

The section governing this law and exceptions are encompassed in Section 121 of the Family Law Act.

For the purposes of our advice, we referred to s 121(9)(f)(i). The section provides:

             (9)  The preceding provisions of this section do not apply to or in relation to:

(f)  the publication or other dissemination of an account of proceedings or of any part of proceedings:

(i)  to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved.

More succinctly, if a person is providing a judgement and reasons to a professional (e.g. lawyer or accountant) for the purposes of them conducting their profession, including in relation to a bankruptcy, then this satisfies the above exemption.

Providing the judgement and reasons would be treated as an exemption to the provision. It must however only be to provide those documents to someone acting in a profession and using that information as part of their profession.

Interestingly, breaching the section does not necessarily open a person up to civil proceedings (being sued) directly under the Family Law Act but rather the more serious and severe criminal charges.[2]