Whilst the majority of the legal profession was and remains staunchly opposed to the merger of the Family Court and Federal Circuit Court, the reality is that it will be upon us soon and we must adjust to the new systems in place. It is important also that our clients know the changes that are soon to occur in the system that they may be litigating in, or considering entering.
With thanks to Jacky Campbell at Forte Family Lawyers (published via www.cch.com.au) here are the ten most important things to know about the merger:
- The Court will now be known as The Federal Circuit Court and Family Court of Australia.
- The new Court will commence operation on 1 September 2021.
- There will only be one Court, but there will be two divisions of that Court. What is currently known as the Family Court of Australia, will become the Federal Circuit Court and Family Court of Australia (Division 1). The Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).
- All proceedings will be commenced in Division 2. All appeals will be filed in Division 1.
- Division 2 will also hear general federal law matters as well as Family law.
- Whilst all Appeals will be heard in Division 1, the Chief Justice can also direct that a matter be transferred from Division 2 to Division 1 in particular circumstances.
- There is no appeal from the decision of the Chief Justice to transfer or refuse to transfer a matter from Division 2 to Division 1.
- There will be new Rules of Court to abide by.
- The Federal Government has indicated that there will be 35 specialist Judges in Division 1 and 43 in Division 2 (nationwide).
- There is a diversity of view on whether or not this new system will be better than our current one. Most of us agree that the new court won’t be better unless the Government provides it with more resources.
To a greater or lesser extent, we are very much in wait and see mode. Watch this space.
In 2021 Australia, pets are without doubt an integral part of the majority of families. With the decision to defer having children until later in life or not at all, couples after separation are often faced with the decision about who gets “custody” of the dog (or cat or both!).
If parties can reach a private arrangement about what happens with the family pet, then that is one thing, but what happens when you can’t?
In a recently published decision of the Federal Circuit Court of Australia in Brisbane, Her Honour Judge Turner has looked carefully at the capacity of the family law courts to determine disputes, on an interim basis about the “custody” of pet dogs.
On 10 February 2021, the Court published Davenport & Davenport (No.2)  FCCA 2766 (8 October 2020) (austlii.edu.au) in which the Court was tasked with deciding a self-represented Husband’s application for an interim “shared custody” arrangement for a dog.
For reasons that we will explore, Her Honour decided there was no jurisdiction to make any such Order.
After a short relationship, during which no children were born, the Wife made an Application for property adjustment Orders under s79 of the Family Law Act. These types of applications fall within the definition of “matrimonial cause” under s4 of the Family Law Act which defines a ‘matrimonial cause” as
Proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings (i) arising out of the marital relationship.
The wife, on a final basis, sought to retain possession of the dog, conveniently referred to “D”. There was a dispute between the parties regarding who paid for him etc but that was a matter for a final decision.
Dogs have long been treated by the family law courts as “personal property” which is defined in the Butterworths Legal Dictionary as “all forms of property other than real property; that is all forms of property other than land and interests in land (excluding leaseholds). Personal property is traditionally divided into two classes: chattels real and chattels personal. A “chattel” is a movable possession and can be considered something capable of being the subject of action possession (a “chose” in possession”) or something that cannot be physically possessed but recoverable by a course of action (“a chose in action).
Importantly, as the Wife sought Orders on a final basis regarding possession of the dog, the Court confirmed that it had jurisdiction to hear that final application, but the Husband’s application was an interim one, which brought with it different considerations. The Court considered that the interim application was not one for the adjustment of property interests and did not therefore fall within Part VIIII of the Family Law Act. The Court further relied upon the decision (one of many!) in Strahan and Strahan (interim property orders) within which the Court determined that there must be jurisdiction to make interim property orders before they could be considered.
The Husband did not assist the Court in providing any authority or legislation which addressed whether the Court had jurisdiction to deal with “shared custody” of “D” the dog. The Family Law Act previously referred to “custody” however it pertained to children, the definition of which, obviously does not include dogs. The Application therefore did not fall within the category of interim parenting decisions, which the Court could have entertained.
The Court relied upon the authority of Gaynor & Tseh  FamCA 164 when confirming that the Court had no jurisdiction to make the Orders sought by the Husband. In that authority the Court stated:
Th Family Law Act makes no reference to pets. It was conceded by the applicant that a dog does not fit within any other category of property than a chattel. Hard as that may be for the applicant, and perhaps other dog lovers to accept, the law here concerns the alteration of interests in property. Most significantly, the issue is the question of the alteration of a property interest on an interim basis.
Whilst sympathizing with the Husband and dismissing his application for want of jurisdiction, Her Honour concluded by saying:
The Court is aware that for many people pets are regarded as members of the family however there is no provision under the Family Law Act and no specific legislation that deals with issues such as the “custody” of a pet whether that be a dog, cat, bird, lizard, fish or any of the wonderful creates that we share the planet with that would empower the court to make orders for shared custody of a pet.
The case highlights further why reaching an agreement (which can include matters which otherwise the Court may not permit) is the best outcome for all concerned, including your dog! Contact Gold Coast family lawyer for your free preliminary discussion about your family law issues (pet-related or otherwise).
The focus of articles such as those in the Courier Mail regarding the separation of Wally and Jackie Lewis draw attention to factors which have long been replaced in the Family Law system – see Wally Lewis: Secret betrayal that tore Lewis family apart | The Courier Mail.
References to alleged affairs of long or short term duration are a constant factor in any reporting of celebrity divorces. And the reality is, is that from a legal perspective, these factors are irrelevant, but for selling your gossip magazines it’s a different story.
Prior to 1975 in Australia, should you wish to get divorced, you would have had to establish one of 14 grounds included into the Matrimonial Causes Act, these included:
- Habitual drunkenness
Gaining evidence of any of the divorce grounds was a cloak and dagger exercise, involving private investigators and other covert methods. This fault base or moralistic approach was deeply rooted in the religious principles underpinning marriage in that era.
However, come the 1960’s those moralistic and religious viewpoints had become out of sync with modern Australia.
A huge groundswell movement emerged in the 1960’s which shifted the viewpoint on marriage and during this time the increasing numbers of defacto couples increased also.
Fast forward to 1972 the then Whitlam Government introduced a series of reforms including those proposed to the laws pertaining to divorce and “custody” as it was then known as.
In 1975 the Family Law Act was passed into law, with a firm majority of votes (80-41). The Family Law Act introduced “no fault” divorce and boy did Australian’s take to the changes. A massive surge in divorce applications occurred after the passage of the Family Law Act and the court has effectively been swamped since that day.
In order to obtain a divorce pursuant to the Family Law Act, all that is required to be established is that the marriage has “irretrievably” broken down for a period of 12 months prior to the application being made. The Court does have to consider whether or not appropriate arrangements are in place for children under the age of 18 as part of the consideration of the divorce Application.
Conduct issues in family law are mostly irrelevant. There are but a few exceptions to this standard position. Whilst it is entirely understandable that the reasons for the end of your relationship have a massive emotional impact, as your advisor, it is our job to ensure that your matter is conducted in a way that complies with the case authorities and relevant legislation.
So in 2021, your divorce application will look dramatically different to how it would have pre-1975, remembering that an Application for Divorce is an entirely different legal process to the division of assets and reaching an agreement, however again fault or conduct issues become relevant in limited circumstances.
Strategic and resolution focused advice is what OMB Family Law is all about. If there are relevant conduct issues which will impact the division of your assets or the living arrangements for your children, then we will provide you with clear advice on how those issues are relevant and the impact they will have.
“It’s the most wonderful time of the year….” Or so the Christmas song goes.
But statistically, this is not always the case for families under stress. The period immediately preceding Christmas and post-Christmas often causes such stress that pre-existing problems are brought to the surface and relationships often end.
The desire for a fresh start in the New Year or just getting through “one more Christmas” often prompts parties to consult with Family Lawyers regarding separating before or after the holiday period.
If you have separated, it is very important that as parents, we shield our children from as much of the adult issues as we can. Children observe and take in much more than we give them credit for. They pick up on stress and conflict through observations of actions, moods, and direct conflict.
When it comes to children’s arrangements, the Court’s will always make an Order which it considers to be in the child’s best interests.
Whether this is sharing Christmas Day or alternating it between parents is entirely subject to the individual aspects of each case.
OMB Family Law’s gift to you is our “helpful holiday hints” – namely some things to consider in the lead up to the festive season and when you are discussing and hopefully agreeing on the arrangements for your child or children and other family law matters this holiday period:
- Christmas is for and about children, let them enjoy it, free from the worry of their parent’s conflict.
- Christmas can cause conflict and anxiety in even the happiest of households, so if there are conflicts in your relationship with the other parent then it is your responsibility to do all that you can to ensure that the children are not exposed to conflict or adult disputes;
- The arrangements for Christmas Day must be child focused, not parent focused. Your “need” as a parent to see your child or children on Christmas Day is secondary to the best interests of your children and in all reality, of little concern or interest to the Court. Christmas is only one day of the year and whilst it may be nice to be spending it as a family, life does not always work that way. Be the adult and be child focused.
- Try to communicate with each other about present(s) for the children to ensure that there is a consistent approach on type of present and there is no double up.
- If you can, make sure arrangements for the special days are resolved well before the holiday period, as your advisors and the Courts will close in the days leading up to Christmas. This enables the stress levels for all concerned to be managed as well as enabling plans with immediate and extended family to be made.
- The capacity to bring a matter before the Court prior to Christmas is quite difficult as there is, notoriously, a lot of families which need court intervention prior to the Christmas period. Bear that in mind when trying to resolve matters.
- If you cannot achieve a Court order prior to Christmas, then a Parenting Plan is the best option available to you. A parenting plan, whilst not a Court Order which carries differing levels of enforceability and consequences for breach, is still a written agreement which the Court will consider if needs be. As the old adage says, “anything is better than nothing”.
- Do not sweat the small stuff, pick your battles, rise above it – all of those colloquialisms apply best at Christmas. It is not the time to worry about someone being five minutes late to changeover or if the kids go on (and on and on) about a present from their other parent.
- Be generous and kind if you can. If you are in a better financial position then your spouse, do not put the squeeze on them financially (ever but definitely not at Christmas). They are the person you chose to have a family with and being difficult financially will only affect your children, in the long run.
- Plan for things going wrong. A dream Christmas would be perfect, but we don’t live in a perfect world and there are no perfect parents (sorry to say!). Small issues should be noted down and raised with your advisor in the new year. Big issues – significant breaches, family violence or risk factors from alcohol consumption – need to be addressed more urgently and if needs be, contact the Police to ensure your and the children’s safety is protected.
- Get advice early. Your family lawyer is a human too – they likely have family of their own and need time to rest and relax so that they are refreshed and available to you in the New Year. If a matter is urgent then, like us at OMB Family Law, they ought to be available to you via email, but otherwise decide to have your meetings well prior to their Christmas closure. Again, if personal safety is at risk, then call 000 without delay.
- Finally, remember what Christmas is truly about – love, family, friendship, and gratitude for being in the best country around. 2020 has posed many challenges for our day to day Aussie life. Take time this year (and every year) to truly remember the meaning of the holidays. It is not a time to focus on winning against your ex, who is getting the kids the best presents or having the best holiday. Kids just want their parents and deep down the competition is likely to just make them sad.
From the OMB Solicitors to yours, may your holiday season bring you happiness (or at least as little conflict as possible), rest, and relaxation?
Our office is open until 23 December 2020 for any family law issues that may arise prior to Christmas and is available for urgent issues over the holidays.
“I have a simple agreement, I just need it witnessed”.
If I had a dollar for every time I had heard that in the years since Binding Financial Agreements became part of the Family Law landscape in Australia.
One of the major protective measures for family law litigants proposing to sign a Binding Financial Agreement is the requirement for them both to have received independent legal advice prior to signing the agreement. This advice must truly be independent.
This requirement is provided for in the Family Law Act (the ‘Act”). The advice that is required to be given by a party’s lawyer is specifically about:
- The effect of the agreement upon the rights of the party; and
- The advantages and disadvantages to the party, at the time the advice is being given, in signing the agreement.
If this advice is not given, then a BFA can be declared not binding upon the parties.
A very clear example of the effect of failing to receive such independent advice is the case of Purdey & Millington  FCCA 213 – see full decision here
In this matter:
- The parties married in 2003 and separated in or around 2014.
- There were two minor children of the relationship who were living with the Wife.
- The parties signed a BFA on 16 September 2014.
- In August 2017 the Wife applied to have the BFA declared not binding upon the parties – thus giving rise to an ability to claim property settlement.
The Wife asserted that she did not receive appropriate independent legal advice despite the document certifying that the requisite legal advice was provided.
The Wife’s case was that, after having some informal discussions, she went with the Husband to his Solicitor on 16 September 2014, to draw up what she believed to a separation agreement but that it was only to deal with some aspects of their property settlement not all of them. She believed that in Australia, you had to sign papers with a Solicitor to be considered formally separated.
After the meeting with the Husband’s Solicitor, the Husband then took the Wife to a meeting with a Solicitor who had been arranged for her.
The Husband asserted he took the Wife to the Solicitor as she “didn’t know how to get there”.
The Wife asserted that the Husband was present during the meeting with her Solicitor, which the Husband denied (saying he only came in at the start and at the end).
The Husband agreed that he paid for the Wife’s legal advice.
During her evidence, the Solicitor for the Wife stated as follows:
- The Wife was referred to her by the Solicitor for the Husband.
- She could not recall if the Husband was present during the meeting.
- She had received a copy of the BFA two or three days before the meeting.
- That during the meeting she went through the relevant provisions of the Act in relation to the effect of the document and went through each page so that the Wife would understand what was “going on”.
- She spoke with the Wife in English during the meeting.
- She did not ask the Wife if she required an interpreter.
- She had kept file notes of the meeting with the Wife.
The Court found that the Wife’s Solicitor who was by then not practicing, was not a witness of truth for the following reasons:
- The firm at which the Solicitor was practising at the time had no file opened in the name of the Wife; and
- She did not produce the file notes which she asserted in oral evidence were in existence.
Ultimately the Court found that the Wife had displaced the inference which could be drawn by the certificate annexed to the Financial Agreement and held:
- The arrangement for the Wife to receive legal advice was not made independently with the Wife, rather it was arranged by the Husband.
- The meeting, which endured for a maximum of 20 minutes, was insufficient for appropriate advice to be given to the Wife in any circumstances, even more so when she had limited English skills.
- The Husband was responsible for and paid for the legal fees of the Wife.
- The Husband was present for the duration of the meeting between the Wife and the Wife’s Solicitor.
- In the absence of file notes to support an inference of proper engagement in the wife, it could not be found that the Wife received competent legal service or the provision of any advice at all.
The Court referred the matter back for resolution through the usual litigation process.
This case highlights the utmost importance of obtaining proper and independent advice prior to signing a Binding Financial Agreement.
Best case practice requires that there be a number of discussions between a party and their lawyer prior to signing a Binding Financial Agreement and further that the independent legal advice be given in writing and acknowledged by the client as having been received. This is particularly important when the circumstances of the agreement are such that the client is being advised not to sign the document. This practice is adopted irrespective of the manner in which the matter was referred to the family law team at OMB Solicitors.
Whilst this practice may seem unnecessary when parties are in agreement as to their property settlement, it is done to ensure that the Binding Financial Agreement is considered as binding as possible.
To ensure that your Binding Financial Agreement complies with all relevant legislative requirements and that you receive proper and independent legal advice, contact our Gold Coast Family Lawyers team for advice.
In response to concerns about delays in the Family Court system, particularly for matters with a small asset pool, the Federal Circuit Court has developed the Family Law Priority Property Pool 500 List (PPP500).
It is a specialist list designed for matters where the net assets of the parties including superannuation is or is likely to be less than $500,000. Additionally, there must not be any Trusts or Corporate Structures which would require expert investigation and the matter cannot involve any other aspect of Family Law, such as parenting or child support issues.
The PPP500 has specialized case management processes comprising:
- Registrar led resolution where couples are assisted in reaching agreement in the shortest possible time; and
- Short form Judge managed lists which apply a procedurally simpler process to the determination phase of a matter.
Close monitoring and scrutiny will be had of compliance with orders for disclosure and valuation with a focus on reducing delays and provide the parties with expanded opportunities to take ownership of their dispute resolution.
The two phases of the PPP500 proceed, in a general sense as follows:
In the PPP500, the usual requirement for filing of an Affidavit and Financial Statement is dispensed with, resulting in the costs to commence proceedings being greatly reduced. There is a specific PPP500 Financial Summary document which is to be filed at the time of filing the Application or Response.
Stages 1 – 4 set out above are expected to be completed within 90 days of filing where possible and the trial process is expected to be conducted promptly and if possible without the need for traditional trial (which results in delays).
The process is expected to and has to date, produced expeditious and effective results in matters which are simple and have asset pools which are not conducive to lengthy delays in the Court system which would result in the asset pool being eroded by significant legal fees.
Of course the process requires practitioners and parties who are focused on resolution and focusing on the big picture rather than the small minute details.
How can OMB Family Law help?
At OMB Solicitors our focus is on prompt and efficient resolution of matters which result in parties exiting the Family Law system without lengthy delays. With strategic and pragmatic advice we will guide you through your property settlement matter and recommend the use of the PPP500 where appropriate and necessary.
In August 2020, the Family Law Courts (the Family Court and Federal Circuit Court) launched The Lighthouse Project, being piloted through a handful of Registries, of which Brisbane is one.
It is the Court’s recognition that the intersection between Family Violence and the Family Law system is complex and requires specific and detailed attention.
The Lighthouse Project is a screening and management program to assess risk to families within the system and having a focus on improving outcomes for families in the family law system.
The project involves:
- Early Risk Screening through a secure online platform
When an Application for Parenting Orders is filed through the online court portal, the parties will be asked to complete a confidential and secure questionnaire via the Family DOORS Triage.
The Family DOORS Triage system has been specially designed for Family Law and considers a range of safety risks that arise frequently in family law matters. The answers to the questionnaire are referred to a highly skilled team of family counsellors who will assess risk as being HIGH, MEDIUM and LOW risk.
High-Risk cases will be referred for immediate action through a video, telephone or face to face conference with a family counsellor. The Counsellor will provide a detailed risk assessment, safety and wellbeing plan for the person and referrals to appropriate support services.
Medium Risk cases will be offered safety planning and service referrals and will be considered for a range of case management pathways based on the individual needs of the case.
Low-Risk cases will be processed through court-ordered dispute resolution.
- Case Management
After assessment through the Family Doors Triage system, the matter will be dealt with by a dedicated team of highly skilled professionals including registrars, family consultants and support staff with specialized training in family safety risks and family violence.
- The Evatt List
Those families assessed as being High Risk and most vulnerable will have their matter managed through the Evatt List which focuses on early information gathering and intervention, through a judge-led support team. This team will have specialized training and experience in working with families who are at high risk.
Why The Lighthouse Project?
It is the Court’s response to calls for the family law system to deal with family violence and risk better. These calls have been made in a number of reports and commissions over the last 10 years.
It is a detailed and dedicated response to a growing crisis in our community, with statistics showing that women, men and children are at increased risk of death or injury at the hands of their partner or parent.
How can OMB Family Law help?
When taking instructions from you, concerns about family violence and risk of abuse and harm are discussed such that we can assess the best way to proceed with your matter. Upon receiving instructions from you to commence proceedings we will work with you to complete the necessary screening questionnaire through The Lighthouse Project and be with you every step of the way through your parenting matter.
Extreme behaviour resulting in extreme orders
The Family Law Act states clearly that a child has a right to know and have a relationship with each of their parents. However, there are some circumstances within which having that relationship will cause a child more harm than good. That harm can be emotional, physical, sexual, or psychological.
Most often the Court protects children from risk of harm through supervision of their time with the parent whom they consider poses a risk to the child. However, in rare circumstances that protection can only be afforded through a “No Time” Order.
The Family Court at Brisbane on 29 June 2020 made such an Order and additionally declared the Mother a “Vexatious Litigant” which is another rarely used power.
The matter of Taggart & Taggart (No2)  FamCA 520 came before the Family Court of Australia for final hearing after some 6 years of constant litigation. It was listed in the height of the COVID-19 restrictions but was a matter the Court determined needed to proceed and in person.
At the outset it is important to note that the Mother chose not to participate in the trial. She did not file material. The parties were advised prior to the trial that personal attendance was required, and that appropriate and safe physical distance measures were to be put in place by the Court. The Court determined to proceed in the mother’s absence with Her Honour’s judgement clearly confirming why that occurred.
The facts of the matter are colourful to say the least and we will not repeat verbatim some of the words used by the Mother, but it is important to know the background in order to understand why Her Honour Justice Carew determined the matter as she did.
- There was one child the subject of the dispute, a boy who is 11 years of age. The parents had been involved in litigation regarding his care since he was only 5 years of age.
- In September 2016, an Order was made providing for the Father to have sole parental responsibility, for the child to live with him and spend time with the Mother.
- The Mother never accepted that outcome and because of two instances of her withholding the child from the Father, in October 2018 an Order was made for the Mother’s time to be supervised.
- From October 2018 until March 2020 the Mother spent only one occasion of supervised time with the child.
The Court was tasked with considering the following issues for determination:
- Is the child at an unacceptable risk of harm from the Mother given her views of the Father and his family?
- Would the mother return the child to the Father should she have time with the child?
- What would be the impact on the child if he had long term supervised time with the Mother or no time or communication with the Mother?
- Should the Mother be declared a vexatious litigant?
As a result of the Mother’s failure to attend, the Court considered this as effectively an application to adjourn the trial. This Application was denied for the following reasons:
- The Mother failed to file any material, begging the question of what involvement she proposed to have in the trial in any event.
- The Mother made no formal application for adjournment nor provided any evidence of her particular risk or vulnerability to COVID-19.
- At the time of hearing there was only 5 active cases of COVID-19 in Queensland.
- There was no public health directive prohibiting the parties attending at Court.
- At the first date of trial Queenslanders could attend restaurants, hotels, and travel on public transport.
- Safety measures had been put into place.
- The interests of the child were such that a long history of litigation had to be ended.
- Electronic means of conducting the matter were not considered appropriate.
- The Father who was privately funding the matter and the ICL opposed the adjournment.
Thereafter Her Honour considered each of the issues for determination.
In the 2016 judgment the Court found that the Mother and her family had a highly negative view of the Father and they ere unable to hide those feelings. In fact, the Mother and her family had nothing positive at all to say about the Father.
At that time, the Family Report noted the mother as saying
- He should get out of our lives
- Just leave us alone and go away
Not surprisingly the Family Report concluded that the Mother was willing to make regular derogatory and denigrating statements that demoralized the Father’s person, suggesting her behaviour is regular and comments without restraint. In possibly the most unhelpful move for a litigant she referred to the 2016 trial Judge as “a piece of crap” in the Family Report and in court events.
The first time the mother saw the child after the 2016 judgement she took him to the Police complaining of him being beaten by the Father.
In 2018 two recovery orders had to be made against the Mother who withheld the child from the Father and from school.
The Mother does not accept the child’s medical diagnosis and indicated to the Contact Centre that she was not going to follow the necessary dietary requirements. She also advised the Centre that one of her goals for supervision was to “prove to dickhead” that she did not need supervision.
When the Mother finally saw the child in 2020 she threatened to punch the Centre coordinator in the face and levelled vile and expletive riddled abuse at staff, including on an occasion she thought her son was inside the Centre. Thankfully, he was not.
The 2020 Family Report opined that the Mother’s anger is unrelenting and entrenched. She does not trust the Father; she sees nothing positive in him. She had no insight as to why her time was being supervised and blamed the Court. The Court was asked to find the least detrimental alternative for the child, calling the current situation a “life tragedy” for the child.
Her Honour Justice Carew concluded that supervision would not ameliorate the risk to the child.
Unsurprisingly the Court found that the Mother would undoubtedly fail to return the child if she had unsupervised time and that long-term supervision was not appropriate.
Sadly, then the Court turned to the impact on this young man of not seeing nor speaking with his mother. Her Honour, with much sadness we have no doubt, concluded that this child will grieve for his mother but it was a case wherein he could not have a relationship with both of his parents in person or via any form of communication.
Finally, of the Court’s own volition it turned to the question of a Vexatious Proceedings Order pursuant to s102QB of the Family Law Act. The judgement helpfully considers all the relevant authority in this regard, and having considered the authority and:
- The Mother’s 20 almost entirely unsuccessful interim applications from 2015 to the 2020 trial; and
- The Mother’s two appeals either abandoned or dismissed by the Court with costs
The Court declared the Mother vexatious requiring her to firstly seek leave of the Court pursuant to s102QE before being able to commence any further proceedings.
This matter involved the most extreme of behaviour on the part of a parent. In this matter it was the Mother, in other’s it is the Father, or the grandparent or other caregiver. However, it shows clearly that the Court does not distinguish between the gender of poor behaviour and will ultimately make tough decisions for the benefit of the child.
When parents seek to formalize their child support matters, it is becoming increasingly common for them to have certainty and security in that regard and for this reason, Binding Child Support Agreements are sometimes considered an agreement of choice.
A Binding Child Support Agreement enables parents to effectively oust the jurisdiction of the Child Support Agency and document their own private arrangement about how much child support is to be paid, and the manner in which it is paid. Payments can be made directly to schools, or activity providers and include apportionment of Private Health Insurance and other medical expenses in lieu of (or in addition to) a cash payment.
Provided it complies with relevant statutory requirements, a Binding Child Support Agreement is most difficult to set aside. Those requirements are as follows:
- It must be in writing, signed by both parents and/or the eligible non-parent care giver
- It must include a statement that each party has received independent legal advice as to the effect of the agreement on their rights and the advantages and disadvantages of the agreement, such advice having to be provided prior to the signing of the agreement.
- It must include as an annexure, a certificate of advice from the relevant legal practitioners.
Once prepared and executed correctly, the limited circumstances within which a Binding Child Support Agreement can be set aside by the Court (of course unless the parties agree to set it aside) if the Court is satisfied that there are:
- Exceptional circumstances
- Which have arisen since the agreement was made
- Which would mean a party to the agreement or a relevant child will suffer hardship if it is not set aside.
The current COVID-19 Global Pandemic and its resultant economic effects will undoubtedly be impacting the capacity for many parents to pay Child Support, whether because of a Binding Child Support Agreement or pursuant to an Assessment or a private arrangement.
This exact circumstance brought parties before the Family Court of Australia in June 2020 with a judgment being delivered by Justice McClelland this month.
In the matter of Martyn & Martyn  FamCA 526 the following circumstances were presented to the Family Court:
- The parties had entered into a Binding Child Support Agreement which was dated 16 August 2012.
- On 13 January 2020 the paying parent, the Father, applied to the Court to set aside the Binding Child Support Agreement pursuant to s136 of the Child Support (Assessment) Act 1989.
- The Father owned and operated a business which supplied products to internationally based businesses.
- As a result of the COVID-19 pandemic and the effect on international commerce, the Father’s business was functioning at a significantly reduced capacity.
- The Father had acquired the business in 2015 with high hopes and dreams.
- As early as August 2016 the Father indicated an intention to seek to apply to reduce the amount of Child Support payable.
- There were proceedings commenced in the Federal Circuit Court in October 2016 within which various Orders including a stay on collection of payments pursuant to Agreement (provided that the Father pay a reduced amount per month).
- By 2019 the Father’s business began to recover, however come May 2020, the Father deposed to the impact of COVID-19 on his business which was 90% based on manufacturing for international businesses. He indicated that all international orders were cancelled effective 27 March 2020 and by April 2020 he could not afford (on his case) any more than $120 per month by way of Child Support.
- The arrears recorded by the Child Support Agency (based on the original agreement) was $31,928.22 as at May 2020. The Father sought to have the Court discharge these arrears.
The Court in Martyn explored what is meant by “exceptional circumstances” and “hardship” in determining the application. His Honour noted that the authorities confirm:
- We must construe exceptional as an ordinary adjective, not as a term of art. Out of the ordinary course, unusual, special or uncommon. It need not be unique, unprecedented or very rare, but it cannot be one that is regularly, our routinely or normally encountered.
And what about “hardship”:
- The concept involves a “hardness of fate or circumstance; severe suffering or privation”. Something more burdensome than “any appreciable detriment”.
Turning to the Father’s circumstances, the Court also turned its mind to a suspension of the Agreement rather than its termination, which was open to it.
In finding it appropriate to set aside the Agreement, rather than suspend it, the Court determined (at paragraph 72):
I decline to exercise a discretion to suspend rather than set aside the Agreement because there is an understandable absence of evidence as to the likely duration and impact of the COVID-19 pandemic on international commerce. In other words, it not possible to determine, on the basis of the evidence before the Court, whether it is likely that the father’s business would recover to the extent that he is capable of satisfying the obligation imposed upon him pursuant to the Agreement after any period of suspension.
In relation to the arrears component, the Court was not minded to discharge those amounts as it would effectively mean the Court would have to find that as at August 2017 (when the reduced payment was ordered by the Federal Circuit Court) there was in existence exceptional circumstances causing hardship. Having found that the exceptional circumstances pertained to the current COVID-19 pandemic, the Court declined that Application.
It is important to note that the Mother conceded the current financial crisis the business was in as a result of COVID-19 and the hearing was still required in order for the Court to make the Order, particularly with respect to the arrears.
This case will be one of many, in our view, in the near future regarding this and other compliance issues to do with property matters, arising as a result of these unprecedented times.
In my frequent review of recent Family Law decisions of the Family Law Courts (Federal Circuit Court and Family Court of Australia) I stumbled across a first instance decision of Judge Neville of the Federal Circuit Court of Australia sitting in Canberra. It was interesting more for it’s discussion of three broad issues, rather than its outcome and those issues were:
- The critique of the lawyers and counsel for failing to comply with procedural orders, Practice Directions and for failing to perhaps progress the matter towards a resolution rather than “box on” in interim proceedings;
- The critique of the parties for their total immersion in effectively seeking to destroy the other; and
- The suggestion that the parties progress towards arbitration to resolve their matter.
For the law nerds out there, the link to the judgement is here. The critique of the lawyers carried with it a little more venom in circumstances whereby the Court had vacated the proposed trial dates due to Covid-19 restrictions but allowed the indulgence of the use of one of those dates for an urgent interim hearing, conducted by Video Link.
The matter involved the following issues:
- Interim parenting arrangements for two teenage girls in circumstances whereby they were considered to have been enmeshed in the proceedings by the mother and are estranged from the father.
- Interim property distribution and spousal maintenance; and
- A consideration of the failure of the lawyers to comply with orders and directions and how perhaps the parties can better focus to resolve the matter.
Sadly, this case involved two young girls of 13 years and 11 years of age respectively, who were completely embroiled in their parent’s dispute.
His Honour commented of this dispute, describing the parents as continuing “to fight, bicker, vent a range of deeply felt emptions and otherwise remain deeply embroiled in a very bitter and inexorably expensive contest”. And that the children were caught up in the maelstrom.
When pondering why children may continue to be “upset” in these circumstances, His Honour noted that the answer did not require “mystical revelation” and suggested the parents should sacrifice some of their contest in order to resolve matters for the sake of their children and back down from what he described as their “fight to the death” at whatever cost (financial, psychological and emotional) for them and their children.
Urging the parents to hear the “plaintive pleas” from their children and do whatever it takes to resolve matters.
It was apparent from the children and parent’s comments to the Family Report Writer that they were fully aware of the financial issues between the parents and the Mother’s opinion of the Father. The dispute was causing the 10-year-old to self-harm, and not even this could force the parents to put down their weapons and seek to resolve matters. “Mum told us he wanted the expensive furniture”, “Mum told us she tried so hard to keep the marriage together…she tried and he didn’t” “I would worry about her (referring to the Mother) if we saw him because it would be a lot of pressure for her”, are but a few examples of comments of a then 12 year old girl.
She went on to then say she would Kill the Judge if he made us go back there. Conversely the younger sister commented “everyone deserves a second chance” when asked about why she had recently chosen to visit with her dad. When asked about how she saw her parent’s role in her self-harming, the young girl said “I felt I had to choose sides. With all the stuff that was going on. And so, when the police came that night, it made it easier”.
Summing up the observations of the children, Judge Neville stated:
- They know much more than they should.
- They were now “driving the parenting bus” rather than the parents; and
- In respect of the younger child, she displayed a maturity well beyond her years when she lamented “everyone deserves a second chance”.
If only her parents took a similar view.
When commenting on why a “let them choose” arrangement simply could not work, the Family Report writer noted that it was likely to result in the most minimal and poor-quality contact. Why? Because the children were not free to exercise this choice outside of their mother’s pervasive influence, their need to protect her emotionally and their own internalized and distorted cognitions about their father (at paragraph 89).
The Court determined that it was “imperative” for the children to spend regular and consistent time with the Father (paragraph 112(f)) and put in place as best it could, a methodology for that to occur.
If ever there was a case to share with parties about how their behaviour could impact children of the ages these girls were, this would be one of the best in recent times, in all of its tragic glory.
Critique of the parties, lawyers, and Counsel for the manner in which they conducted the proceedings
On an interim basis, there exists a practice direction which details the number of affidavits that can be relied upon, their length and the limit on annexures.
Breach of that practice direction is at the practitioner’s risk (and the parties but more the practitioners). If leave is not granted to rely upon an affidavit in breach of this Practice Direction, then parties are required to strike out offending parts and they and their lawyers face costs Orders.
Often the Court will make directions for the filing of material and supporting submissions prior to an interim hearing. In this matter, the parties were limited to a two-page written outline addressing the issues to be determined.
The Father’s was just over two pages and leave was given for that extension. The Mother, via her Senior Counsel filed submissions that ran to just on 7 pages. When raised with Senior Counsel, the response was that they had to be filed that way or he would have to do oral submissions on the matters. This response was described (at paragraph 20) as inappropriate, almost defiant, and presumptuous. The court noted that this conduct treated the Orders as suggestions or guidelines, which they were not. Suggestions as to how it could have been better handed by the Mother and her Counsel were made, and they are useful to take note of when reading the judgment.
Each of the parties filed affidavits in breach of the Practice Direction. Given that the listing was considered “quite an indulgence” the treatment of the Court by the parties (more directed towards the lawyers, whose responsibility it is to comply with the Practice Direction) was described as:
- An affront
The long and the short message to parties and lawyers is simple. Comply with Orders and Practice Directions or it is at your peril.
Turning to the nature of the material filed, His Honour noted that (at paragraph 24):
There is more than an indication that neither of them can contain nor otherwise restrain detailed, voluble expression of their grief, frustration and much else besides, towards the other party. Such feelings and all else are ventilated freely. The consequence? A cycle of (a) accusation, response, reply and more, (b) the forwarding of these messages to the lawyers, who in turn print them out and attachment to affidavits, and (c) the parties get charged for their inability to control their pent up hostilities and other emotions.
The above may assist us all in reflecting on how matters are conducted in some circumstances.
How did the Court suggest this and other such similar matters be resolved?
The Court lamented at paragraph 129, about how much had been sent in every sense in the proceedings to date and commented that Family Law is effectively about problem-solving. Even in dire circumstances committed parties and lawyers are able to craft solutions to the most “intransigent, seemingly intractable and delicate difficulties”. To do so simply needs willingness and wherewithal.
He posed the question, as I do regularly with clients “what would it be like to be free of the contest and the Court system”. It is a question that we all must put to our clients in an effort to be resolution focused.
More in the property space than the parenting matter, the Court referred the parties (and presumably their advisors) to the Australian Solicitors Conduct Rules (Rule 7) which provides that we must advise our client about alternatives to fully contested adjudication of the case which are reasonably available to a client.
His Honour made the suggestion of arbitration and when looking at when that might occur (namely prior to Christmas 2020) suggested that would be a most wonderful Christmas present to the parties and their children (having the matters resolved that is).
Arbitration is however a voluntary process and whilst it is one that OMB Family Law fully advocates it must involve two willing parties and lawyers who have the capacity to decide how to resolve their matter.
Thanks for reading what turned into somewhat of an essay I did not plan to write today. This judgment just rang so many bells for me in a time where high conflict seems the way to go, when, as Judge Neville commented, resolution requires only the will and wherewithal to be channeled into it.
When you and the other parent of your child or children, cannot reach an agreement on the living arrangements for your children after separation, and you have exhausted all avenues of dispute resolution, as a place of last resort, litigation can be commenced.
How though, when a Court is faced with two parents, with different views on what is best for their child or children and different perspectives on the history of their parenting relationship, is a Judge to sift through these different perspectives and make a decision in the best interests of the children?
A Judge does not meet your child. They know them only as a name and as they are described by their parents. This is where a Family Report comes into play.
Arguably the Family Report Writer is the second most powerful person in your parenting proceedings after the Judge. Why is this so?
- They are typically the only person who will meet both the parents and the child or children outside of the court room. They have the opportunity to interact with the children and observe them with their parents and significant others. The observation aspect of the Family Report is more often than not more impactful than the interviews.
- They are independent. Whilst appointed by a Court or the parties (if they are funding a private Family Report), they are independent in so far as they have no vested interest in your outcome.
- They are experts in social sciences including psychology or psychiatry in some cases. They apply different knowledge bases and influences to assist the Court, rather than the lawyers speaking of things through a legal prism.
Family Reports can be undertaken prior to any litigation processes, as a further step along the way to resolving matters by agreement. Even though not Court appointed in that event, the report will still hold significant weight by the Judge.
So, what is this seemingly all-powerful document called a Family Report?
It is a report prepared after interviews and observations which comments on the child’s views, wishes, experiences and family dynamics. It then ties all of those matters together and makes recommendations. Relevant family dynamics that may be explored include:
- Parenting capacity or incapacity.
- Domestic and family violence.
- Drug or alcohol use or abuse.
- Mental health or emotional health functioning and irregularities.
- The child’s views and wishes (subject to their age and maturity level).
- Special needs of the child or children.
- The extended family dynamics including grandparents, aunts and uncles, new partners, siblings, stepsiblings, or half-siblings; and
- Relevant cultural considerations for families of indigenous origins or other foreign cultures.
Whilst very important, it is oft quoted in the Family Law Courts, “Family Report Writer’s don’t make Orders, I make Orders” or such other variation of that decree. They are simply a piece of evidence that is assessed along with all other evidence that is accepted by the Court.
Given the significance of a Family Report, it is important to prepare for your interviews appropriately. Some things to remember:
- You will be assumed to be on your best behaviour, so you don’t have to put on any more of a front than you are.
- Dress respectfully and speak with the Family Report Writer respectfully and professionally. They are just doing their job. Remember that anything you say can be reported verbatim to the Court. A memorable quote from a Family Report that I saw some years ago, which made its way into the final judgement “You can tell Judge X that I don’t care what he says he is (insert many expletives here), I am doing what I want for Child X”. Needless to say, that litigant was not viewed in a particularly favourable light.
- Be mindful that it is not just what is said during your direct interview that can be included in the report. Your interactions in waiting rooms with the staff of the Writer, with your ex and their new partner or family and with your children are all likely to be being observed and form part of the Writer’s assessment of you.
- Do not use the interview process as an opportunity to dig a thousand knives into your ex. Behaviour such as domestic violence, drug use or poor decisions are likely to be raised by the Family Report Writer and you will have an opportunity to address those concerns at that time.
- Be positive about the other parent. It astounds me the number of litigants who think that it is important to say all the bad stuff in order to “win”. It is quite the converse. Showing that you can see the good in the other parent and speak of them with kindness when it comes to their role in your children’s lives and how that is a positive for your children will produce a fair more accurate report. The reality is the cases that a parent has NOTHING to offer to a child are extremely rare indeed.
- Do not be someone you are not. Be honest and candid. Accept when you may have done things wrong, you are human and there are no perfect parents.
- You do not have to present them with “evidence” to support your case. It is likely that they will have or will eventually, read the court documents but as noted above, it is likely their observations and interactions with you and with your children will be more important to a social scientist.
- Do not coach your children about what to do and say during the interviews. There are age-appropriate resources available via the Family Court Website to assist in what to say to children and how to say it. Coaching will be patently obvious to an experienced Family Report Writer.
Where time permits, it is important to prepare for your Family Report interviews. An experienced and expert Gold Coast Family Lawyer will be able to speak with you openly and honestly about their concerns for how you may present during the interviews and how to best combat any worrisome behaviour.