The evidence presented to the Committee highlighted a family law system that faces significant challenges, including in relation to costs to parties, legal assistance, addressing family violence and placing the best interests of children at its centre. The Government is committed to restoring the family law system so that it is accessible, safer, simpler to use, and delivers justice and fairness for all Australian Families.

Practitioners are already moving through the various changes which have been introduced at various times since the inquiry began.

Notably, significant changes were implemented in September 2021 as the two Court’s predominantly responsible for determining Family Law matters, the Family Court and the Federal Circuit Court, were merged in to one Court, which has streamlined processes overall. The implementation of the new Rules (the Federal Circuit and Family Court (Family Law) Rules 2021) as well as various practice directions, have assisted practitioners since this time in navigating the system with their clients as quickly and inexpensively as possible, providing an overall rubric for how matters should be conducted.

From 28 November 2022, the Lighthouse project extended to become an ongoing program in 15 major Family law registries to manage cases where significant risk was involved and from the earliest opportunity, and on 30 October 2023 the Priority Property Pool Cases list expanded nationally to all filing registries to provide a case pathway for low asset matters with the aim to best preserve the parties assets.

Now, in 2024 the Government is set to implement further significant changes to the Family Law Act 1975. As of 6 May 2024, major changes will take effect with such changes to include how the Court are required to determine parenting disputes. Key changes will include:

1. Changes to how the Court are to determine the “best interests of the Child”, including abandoning the previous “hierarchy” of considerations and identifying six key categories of considerations for the Court;
2. The removal of current pathways which require the Court to consider equal time and shared parental responsibility, including removal of the presumption of equal shared parental responsibility;
3. The adoption of previous case law principles surrounding changes to Final Parenting Orders;
4. Clarification of the consequences of non-compliance with Parenting Orders;
5. Changes to delegated powers to Registrars in relation to ‘make-up’ time orders;
6. Clarifications of definitions including in relation to Aboriginal and Torres Strait Islander families;
7. Requirements for Independent Children’s Lawyers to meet with children and provide them with opportunities to express views, subject to certain exceptions;
8. The establishment of a criminal offence as to disclosing the identify of any person connected to a Family Law proceeding.

Overall, the changes set to take affect dramatically change what parents need to know about how their matter will be decided by a Court, with the additional effect being that practitioners who advise clients from 6 May 2024 onwards will not have a substantial body of law to draw from in regards to the interpretation of the legislation. While the overarching purpose of the system remains the same, it appears practitioners in this area are officially entering new ground.

Don’t get left behind. If you need help understanding how these changes may affect you, call and book an appointment with our Family Lawyer.

Things can get complicated when these third parties commence proceedings in state or federal courts, especially when you are trying to navigate your Family Law matter in the Federal Circuit and Family Court of Australia. It can be hard to know what to do in your Family Law matter when you also have uncertainty from a case in another Court that affects your entitlements in the Family Court. The Court’s different timetables can also cause an issue as you may feel that one matter needs to be determined to help determine the other matter.

When a matter is being litigated in one Court which is directly relevant to a matter in another Court (such as proceedings in the Supreme Court seeking enforcement of a debt and payment by way of sale of the family home), then one of those Courts may need to transfer their proceedings to the other Court in order to have the various issues litigated together. This process is known as cross-vesting, and is made possible by the Jurisdiction of Courts (Cross-vesting) Act 1987.

The Family Law Act 1975 (Cth) also contains provisions in section 46 which require courts of summary jurisdiction to transfer proceedings in relation to property of a total value exceeding $20,000.00, and where the orders sought are in dispute, to the Federal Circuit and Family Court or another court listed in that section, unless both parties agree to the dispute being heard in the summary court. The summary court can still transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the Court to hear and determine the proceedings.

This cross-vesting between courts and cross over of jurisdiction can be complicated, because you may need to consider which court is more appropriate to hear both matters simultaneously. Sometimes cross-vesting is not the answer, or even a possibility, such as where a Court finds that the relevant criteria under the legislation are not met and declines to transfer proceedings to be heard together. So are there ways to protect your interests while you navigate your Family Law property matter?

In the case of Pratten & McPherson [2016] Austin J made an anti-suit injunction order restraining the Second Respondent in that matter, the Respondent Husband’s Mother, from taking any further steps to prosecute her claim for relief in Supreme Court proceedings initiated by her in relation to a parcel of land owned jointly by her and the Applicant Wife. The Second Respondent sought that the whole of the proceedings before the then Family Court of Australia be transferred to the Supreme Court pursuant to section 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987. The Judge discussed the need for the focus of attention to be on which of the courts would be the “more appropriate” forum, or alternatively, for it to “otherwise be in the interests of justice” that the matrimonial proceedings be transferred to the Supreme Court. The Judge found that the Family Court was the more appropriate Court to deal with the dispute, and felt the “justifiable and safest course” was to grant the anti-suit injunction (in essence, a restraint on the mother from further litigating her claim in the Supreme Court). The Judge confirmed the Court’s power to grant such a remedy arising from cases such as Cole & Abati [2016] and Teo & Guan [2015].

The case of Pratten & McPherson [2016] was cited in a further case, Janda & Janda (No 2) [2022], and similar anti-suit injunction orders were made in that case to restrain the continuation of Supreme Court proceedings by a third party to that matter. In this matter, the Court acknowledged at [22], “it is a serious step to injunct a party from continuing litigation. All the more so where that person is a stranger to the marriage. It is a step which will only be taken where the Court can be satisfied that all the matters in s90AF of the Act have been appropriately addressed.”

CBD Law can advise you of your rights in relation to your Family Law property settlement, and how these may be impacted by the rights of third party creditors. We can help you at every step of the process, including initial discussions and disclosure, representation in Court proceedings, and formalising property settlements, including property settlements that require notice or participation of third parties.

This new Court means a new system of case management, one set of documents for use in Family Law matters and one set of Court Rules. There will no longer be “Federal Circuit Court Judges” and “Family Court Judges”, although matters will continue to be divided in to one of two divisions, based on the complexity of the matter.

Any current cases will remain before the docket Judge in which it was originally assigned, and any changes which may affect your matter should explained to you. Possibly the most noticeable change you will find is the change to case management, which will hopefully result in less interim appearances and a stricter oversight of compliance with orders and disclosure. That’s the desired outcome at any rate.

The new Court website has been launched, so if you do wish to do your own research, please click the following link: https://www.fcfcoa.gov.au/about

Parents may choose to relocate for a number of reasons: they may be fleeing from domestic violence, moving to pursue better work opportunities, or moving to be closer to family, friends and other support networks. While parents do not need to show compelling reasons to relocate, applications for relocation create significant challenges for the Court, in that, where the relocation is opposed, the Court must then determine where the child shall live: with the relocating parent, or with the remaining parent? As with any other parenting dispute which comes before it, the Court must make decisions for the child based on what is in their best interests.

The recent decision of Babock & Waddell [2018] FamCA 276, is a recent case where the Court has had to consider an application for the interstate relocation of the subject child. In this matter, the Mother, Ms Waddell, sought orders that she be permitted to relocate the subject child’s residence to Perth. Arguing that the relocation would impact upon his meaningful relationship with the child, the Father, Mr Babock, opposed the relocation, and sought that the Mother and child remain living in Sydney. The Trial Judge confirmed the current position of the law, noting that, “parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act) with a view to determining what orders, if any, are in the best interests of the children.”

Upon comprehensively considering each of the matters set out in s60CC of the Act, and both parties competing proposals, the Trial Judge made orders allowing the relocation of the child. In coming to his decision, the Trial Judge considered the application of the Act in relation to parental responsibility and the subsequent need to consider making orders for equal or substantial and significant time, the benefit of relocation on the mother’s mental health and how this would impact the child, the nature of the child’s relationship with each parent and others, the nature of the parents relationships with each other, the practical difficulties of the child spending time with each parent, the child’s wishes, each parents capacity to meet the needs of the child, and issues of domestic violence. While the Trial Judge recognised that the child may initially suffer a period of distress at being separated from the Father, the paternal extended family, and her Sydney based friends, he considered the relocation to be in the child’s best interests when looking at the medium to long-term benefits it would have for the child. The orders for the relocation of the child were upheld upon appeal by the Full Court of the Family Court in Sydney: Babock & Waddell [2019] FamCAFC 129. This case provides just one example of a matter where relocation was seen to be the more preferable option for the child.

Determining whether a parent should be able to relocate a child’s primary residence, either interstate or internationally, is often a complex matter which requires consideration of a number of factors. The above case example makes this clear. If you are going through a separation, and are struggling to determine living arrangements for your child, come and see our Family Law team for advice on your options and obligations.

Mr Kennedy was a 67 year old Property Developer with assets of somewhere between $18 to $24 million dollars. He met Ms Thorne on an internet website. At that time, mid-2006 Ms Thorne was a 36 year old living overseas with minimal assets. She relocated to Australia. The parties got on and decided to marry. Ms Thorne wanted to have children.

Before the wedding Mr Kennedy instructed his Solicitors to prepare a Financial Agreement (Pre-nuptial Agreement). The proposal was that the Pre-Nuptial would be signed and then that Agreement required a further Agreement would need to be signed after the wedding.

Shortly before the wedding Ms Thorne received the Agreement which disclosed the extent of Mr Kennedy’s assets. She saw a Solicitor in relation to the Agreement, and, according to Ms Thorne the Solicitor told her it was “the worst contract I have ever seen.  Don’t sign.” The Solicitor gave a lengthy written advice in relation to the Agreement in which the Solicitor noted “I hold significant concerns that you are only signing this Agreement so that your wedding will not be called off.”

Contrary to that advice, Ms Thorne signed the first Agreement and the wedding went ahead.

The second Agreement was then prepared and around a month or so after the wedding Ms Thorne again discussed it with her Solicitor. The Solicitor gave the same overall advice that the Agreement was terrible and she should not sign it. Ms Thorne signed. The parties remained married for just short of 4 years. They cohabited all up for about 4 ½ years.

On separation the wife challenged the Agreements under the Family Law Act – Section 90K. In setting aside the Agreements the Court noted that:-

If the relationship ended, the wife would have nothing. No job, no visa, no home, no place, no community.

Every bargaining chip and every power was in Mr Kennedy’s hands.  Either the document as it was, was signed or the relationship was at an end. The husband made that clear.

Mr Kennedy knew that Ms Thorne wanted to marry him. For her to do that, she needed to sign the document. He knew that she would do that. He didn’t need to consider offering something different or more favourable to Ms Thorne. If she wanted to marry him, which he knew her to want, she must sign.

The Court then found that in the circumstances, the wife signed the first Agreement under duress and that it was a duress borne of inequality of bargaining power where there was no outcome available to the wife that was fair or reasonable and that the wife had no bargaining, nothing to persuade a different outcome, no capacity to effect any change.

The Court found that like the first Agreement, the second Agreement was also inoperative as signed under duress.

The Court ordered the husband to pay the wife’s costs.

UPDATE:

In November 2015, an appeal was heard in the Full Court of the Family Court in Brisbane and in December 2016, the appeal was upheld on the ground that the wrong legal test had been used to establish duress. The Full Court said that the correct test for duress is whether there has been threatened or actual unlawful conduct. There needed to be a finding that the pressure was ‘illegitimate’ or ‘unlawful’. Compulsion, absence of choice or inequality of bargaining power was found not to be enough to prove duress.

On 10 March 2017, special leave to appeal to the Full Court of the High Court was granted to Mrs Thorne (Appellant Wife).  The Respondents are now the adult children of the husband, Mr Kennedy, who has since deceased. The grounds of appeal include whether the Full Court of the Family Court erred in their approach to undue influence, unconscionable conduct and inadequate reasons of the Trial Judge.

Full and frank disclosure by both parties to a family law dispute is a legal requirement governed by Reg 13.04 of the Family Law Rules 2004 and Reg 24.03 of the Federal Circuit Court Rules 2001. These rules ensure that both parties are fully aware of the assets and finances that are available for distribution. The Regulations list the disclosures that must be made, but can include all sources of income, any interests in property and any gift or disposition of property made by either party since the separation. The resolution of property disputes is most effective when both parties adhere to these rules at an early stage in the proceedings. The need for either party to make independent enquiries can be costly and cause long delays. In some circumstances lack of disclosure can cause a matter to proceed to court which might have otherwise resolved through negotiations.

What can happen if you do not provide full and frank disclosure?

If you fail to disclose all of the necessary information or sign a document which is false or misleading, the court can impose penalties which can include:

a) Ordering you to pay the legal costs of the other party;

b) Not allowing certain information to be used by you as evidence in your case; or

c) If you are found to be in contempt of court, fines or imprisonment can be imposed.

Most certainly, non-disclosure will result in a loss of credibility for the non-disclosing party. This was made most evident by the comment of Wall LJ:

“It is at this point that the husband’s litigation conduct returns to haunt him. Had he behaved properly during the proceedings, had he given full, frank and clear disclosure, had he not breached his undertakings and dissipated funds, I do not think we would be where we are or that we would be having the current argument”

– M v M [2006] EWCA Civ 1852

For more information on what you are required to disclose during Family Law proceedings, contact one of our experienced Family Law solicitors at CBD Law today.

A Newcastle Federal Circuit Court Judge’s decision to prevent a mother from breastfeeding her 11 month old child has been unanimously overturned on appeal to the Full Bench of the Family Court.

The trial judge had placed an injunction on the mother preventing her from breastfeeding the child on the basis that the mother had recently had a tattoo and the judge considered after reviewing the Australian Breastfeeding Association website that this placed the child at risk of contracting a blood borne disease from breastfeeding. The mother suffered post-natal depression and required medication to treat it which was a cause of concern for the trial judge. The father had not made any application to restrain the mother from breastfeeding.

The matter came before the Court as the mother had applied for a recovery order after the father failed to return the child after a visit. The father had previously pleaded guilty to assaulting the mother and was on a good behaviour bond. An apprehended violence order was in place. The trial judge made orders that the child was to spend between 9am and 3pm with the father on alternating days.

On appeal, the full bench of the Family Court said the arrangements put in place by the trial judge were ‘bizarre’ and it was very rare for it alternating day arrangements to be in the best interests of the child. His Honour Justice Aldridge said in relation to the breastfeeding injunction that the trial judge had failed to grant the injunction on the evidence before him and had misunderstood the level of risk to the child from breastfeeding following a tattoo. His Honour noted that the trial judge had failed to acknowledge the emotional and psychological benefits to the child from breastfeeding and the impact of cessation of breastfeeding when weighing up what was in the best interests of the child as required by the Family Law Act 1975. The Appeals Court said that judges should not ‘mistake their own views for facts or expert evidence’ and noted difficulties of a judge relying on information they obtained by searching the internet.

His Honour Justice Aldridge was only able to find only one reported case where a mother was restrained from breastfeeding her child. In Re Baby A [1999] NSWSC 787 an injunction was granted to prevent a mother who was HIV positive from breastfeeding. The mother herself had agreed she would not breastfeed and the only issue before the court was whether that agreement should be reinforced by an injunction.

Jackson & Macek [2015] FamCAFC 114 (19 June 2015)

Financial agreements were intended to provide certainty in sorting out property and spousal maintenance disputes should a couple separate. But almost 12 years since their introduction, the law relating to making them, enforcing them and setting them aside remains uncertain.

In cases since the 2010 changes, judges have taken different approaches in interpreting whether errors in drawing up agreements can be rectified or if the agreements are no longer binding.

Due to such ambiguity, it may be more prudent to avoid financial agreements altogether and, where possible, obtain court orders instead. Make sure you consult a solicitor when you are entering into any contracts or agreements.

The full Court in Kane v Kane has decided that there is no separate doctrine of special contribution or special skill that should be looked at separately but the Court should look at that aspect in context of balancing contributions generally.

Kane v Kane involved a 29 year relationship with the contributions in general being equal.  However, the Husband made decisions in relation to the Superannuation fund.  In the course of managing the Super fund the Husband after research decided to invest in a particular company.  The Wife was reluctant but the investment was made and ultimately the investment resulted in a substantial windfall for the Superannuation fund. 

The trial Judge adjusted the assets outside of the Super equally (roughly $400,000.00 each) and the Super fund worth $3.4 million – 2/3rd  in favour of the Husband and 1/3rd in favour of the Wife.  This resulted in an overall split of all matrimonial assets of about 64% to the Husband and 36% to the Wife. 

The Wife appealed.  The full Court was not entirely convinced that the windfall in the Super fund was as a result of any special skill or acumen.  The full Court saw it more as purchasing a lottery ticket.  The full Court noted that if losses were made in investment portfolios parties did not generally seek to have losses attributed to the party responsible for making the investment decision. 

The Court decided that any separate doctrine of “special contribution” should be reconsidered.  The Court noted that “it is almost impossible to determine questions such as – ‘was he a good businessman/artist/surgeon or just lucky?  Was she a good cook/housekeeper/entertainer or just an attractive personality?  We think it invidious for a Judge to in effect to ‘give marks’ to a Wife or Husband during a marriage.”

As a result, the Court decided that all contributions should be assessed in an overall consideration of the factors in Section 79 (4) (which the Court noted did not contain the words “like/special” or “extraordinary”. 

So your “special contribution” or “special skill” will be taken into account but only as part of an analysis on an overall assessment rather than being viewed in isolation. 

During the course of the relationship the Plaintiff purchased a Toyota Prius for about $27,000 and a Silverton boat for around $172,000. Both items were purchased entirely with the Plaintiff’s money but registered in the Defendant’s name. There was a dispute as to what was said at the time of purchase/registration. The Plaintiff says that in both cases he had a conversation with the Defendant to the effect that he wanted to put the car/boat in the Defendant’s name so his wife would not find out and become upset. The Defendant’s versions in both cases were along the lines that the Plaintiff wanted to give her the car and the boat.

In cases where property is purchased by one person/entity entirely and put in another person/entities name there is a general presumption that a “resulting trust” arises. That is the person in whose name the property is held is holding the property for the other person on trust. The presumption that it is being held on trust is rebuttable that means if the Defendant was able to convince the Court that the Prius and the boat were being bought by the Plaintiff for her, the presumption would be overcome and therefore she would be the owner of both.

Unfortunately for the Defendant the Court found that the Plaintiff did not intend to give the car to her so the Plaintiff was held to be the owner of both.