LAWS5063
Family Law
Summary Notes
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THE CONSTITUTIONAL AND JURISDICTIONAL FRAMEWORK ... 6
THE ‘FAMILY’ ... 6
FAMILY LAW ACT 1975 ... 6
Principles to be Applied ... 6
THE CONSTITUTIONAL FRAMEWORK ... 7
The Marriage Power ... 7
The Divorce and Matrimonial Causes Power ... 7
Methods for Extending Parliament’s Legislative Power ... 7
Demise of Cross-Vesting Legislation ... 7
THE JURISDICTIONAL FRAMEWORK ... 8
Overview ... 8
Accrued Jurisdiction ... 8
Associated Jurisdiction ... 9
Other Jurisdictional Issues ... 9
Welfare Jurisdiction ... 9
Secretary, Department of Health and Human Services v Ray (2010) 247 FLR 455 ... 10
The Federal Circuit Court ... 10
SPECIALIST MEDICAL PROCEDURES ... 11
Sterilisation of Intellectually Disabled Children ... 11
Hormonal Treatment for Gender Identity Dysphoria ... 13
MARRIAGE AND DE FACTO RELATIONSHIPS ... 14
RECOGNITION OF ADULT PARTNERSHIPS ... 14
So What’s the Difference? ... 14
DE FACTO RELATIONSHIPS ... 14
Duration of the Relationship ... 14
Living Together as a Couple on a Genuine Domestic Basis and the Extent of Common Residence ... 15
Sexual Relationship and Shared Life ... 15
Registered Relationships ... 15
MARRIAGE ... 16
Entering Marriage ... 16
Nullity ... 16
Divorce ... 16
FAMILY DISPUTE RESOLUTION ... 18
WHAT IS FAMILY DISPUTE RESOLUTION? ... 18
The 2006 Reforms ... 18
Children’s Interests in FDR ... 18
EXEMPTIONS TO COMPULSORY FDR ... 18
Section 60(i) Certificate ... 19
LAWYERS ROLE IN MEDIATION ... 19
Obligations of Advisers and Lawyers ... 19
FAMILY VIOLENCE AND FDR ... 20
CONFIDENTIALITY ... 20
OUTCOMES OF FDR ... 21
Parenting Plans ... 21
Consent Orders ... 21
PROPERTY MATTERS AND FDR ... 21
INDEPENDENT CHILDREN’S LAWYERS ... 22
WHEN TO APPOINT AN ICL ... 22
ROLE OF THE ICL ... 22
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PARENTAL RESPONSIBILITY ... 23
WHO IS A PARENT? ... 23
PRESUMPTION OF PARENTAGE ... 23
Declarations of Parentage ... 23
Assisted Contraception ... 24
Surrogacy ... 24
WHO CAN APPLY FOR A PARENTING ORDER? ... 24
BEST INTERESTS PRINCIPLE ... 25
PARENTAL RESPONSIBILITY ... 25
Parental Responsibility Orders ... 25
EQUAL SHARED PARENTAL RESPONSIBILITY ... 26
Presumption of Equal Shared Parental Responsibility ... 26
When is the Presumption of ESPR Rebutted? ... 27
GILLICK COMPETENCE ... 27
DECISION MAKING ABOUT CHILDREN ... 30
REFORMING JUDICIAL DISCRETION ... 30
KEY SECTIONS IN PARENTING MATTERS ... 30
BEST INTERESTS OF THE CHILD ... 30
Primary Considerations in Section 60CC(2) ... 31
Additional Considerations ... 31
APPLICATIONS BY NON-PARENTS... 32
Applications by Grandparents ... 32
ESPR and Non-Parents ... 32
WHAT ISSUES MAY A PARENTING ORDER COVER? ... 32
LEGISLATIVE PATHWAY FOR PARENTING ORDERS ... 33
Legislative Pathway in Goode & Goode [2006] FamCA 1346 ... 33
Legislative Pathway for ESPR ... 34
SUBSTANTIAL AND SIGNIFICANT TIME ... 34
Meaning of ‘Consider’ ... 34
REASONABLE PRACTICALITY ... 35
INTERIM HEARINGS ... 35
Interim Hearings and Family Violence ... 35
Interim Hearings and ESPR... 36
SPECIFIC ISSUES IN PARENTING ... 37
WHAT IS ABUSE? ... 37
Is it an “Unacceptable” Risk? ... 37
Case Examples of Abuse Outcomes ... 38
What About False Allegations? ... 38
WHAT IS A FAMILY CONSULTANT? ... 38
Child Dispute Conference / Child Inclusive Conference ... 39
WHAT IS AN EXPERT REPORT? ... 39
VARIATION OF FINAL ORDERS ... 39
Where One Party is Seeking to Vary Orders ... 40
The Rule in Rice v Asplund ... 40
CONTRAVENTION APPLICATIONS ... 41
Outcomes of Contravention Applications ... 41
APPEALS ... 42
FAMILY VIOLENCE ... 43
THE FAMILY VIOLENCE PLAN ... 43
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LEGISLATIVE RESPONSE TO FAMILY VIOLENCE ... 43
Family Violence Best Practice Principles ... 43
WHAT IS DOMESTIC AND FAMILY VIOLENCE? ... 43
Effects of Family Violence on Children ... 44
FAMILY VIOLENCE IN PARENTING PROCEEDINGS ... 44
Definition of Family Violence ... 44
Definition of Child Abuse ... 45
Obligations on Lawyers ... 45
Allegations of Family Violence from Interested Persons ... 45
Amador & Amador [2009] FamCAFC 196 ... 46
Injunctions under the FLA... 46
Interaction with ADVO’s ... 46
RELOCATION AND INTERNATIONAL ABDUCTION OF CHILDREN ... 47
WHAT IS A “RELOCATION”MATTER? ... 47
RELEVANT SECTIONS OF THE FLA ... 47
JUDICIAL APPROACHES TO RELOCATION APPLICATION ... 47
AMS v AIF (1999) 199 CLR 160 ... 48
A v A: Relocation Approach (2000) FLC 93-035 ... 48
U v U (2002) 211 CLR 238 ... 48
IMPLICATIONS OF THE 2006REFORMS ... 48
Post-2006 Cases ... 48
INTERIM RELOCATION CASES ... 49
UNILATERAL RELOCATION CASES ... 49
Sampson and Hartnett (No 10) (2007 FLC 93-350 ... 50
MRR V GR(2010)ALR368 ... 50
Collu & Rinaldo [2010] FamCAFC 53 ... 50
RELEVANT ORDERS TO CONSIDER ... 51
INTERNATIONAL CHILD ABDUCTION ... 51
PROPERTY AGREEMENTS ... 52
INTRODUCTION TO PROPERTY SETTLEMENTS ... 52
PRIVATE AGREEMENT OVERVIEW ... 52
INFORMAL AGREEMENT ... 52
CONSENT ORDERS ... 53
Setting Aside Consent Orders ... 53
BINDING FINANCIAL AGREEMENTS ... 54
What Constitutes Legal Advice? ... 54
Legislative Background ... 55
Why Choose a BFA? ... 55
Avoiding BFA’s ... 55
Setting Aside or Voiding a BFA ... 56
Case Examples ... 56
COURT-ORDERED PROPERTY DIVISION ... 58
OVERVIEW ... 58
Jurisdiction ... 58
Injunction ... 58
THRESHOLD ISSUE FOR DE FACTO RELATIONSHIPS ... 58
OUT OF TIME LEAVE APPLICATIONS ... 59
ORDERS IN SECTION 79/90SMPROCEEDINGS... 60
THE “5-STEP”APPROACH ... 60
Step 1: Identify Interests ... 60
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Step 2: Determine Whether Interests Need to be Altered ... 63
Step 3: Identify and Assess Contributions ... 63
Step 4: Consider Additional Matters ... 66
Step 5: Resolve ... 66
SPOUSAL MAINTENANCE ... 66
Threshold Test ... 67
OTHER RELEVANT ISSUES ... 67
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Family Dispute Resolution
What is Family Dispute Resolution?
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“An of out-of-court process in which parties to a dispute are assisted by professionals such as mediators or specialist dispute resolution practitioners to identify issues, share relevant information, explore and test possible solutions, and to put agreements in writing”: ALRC 2019
-Division 3, Part VII of the FLA: Section 10F: Family dispute resolution
is a process (other than a judicial process)
(a) in which a family dispute resolution practitioner helps people affected or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other;
and
(b) in which the practitioner is independent of all the parties involved in the dispute.
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FDR Practitioner is defined in s 10G
Not an advisor or decision maker, independent person who supports the parties to make their own decisions (see also Part 2, Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth))
The 2006 Reforms
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The Family Law (Shared Parental Responsibility) Amendment Act 2006 changed processes before, in, and after court
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Families who dispute parenting arrangements and wish to apply to the court for a parenting order must attend an FDR conference prior to filing an initiating application with the court, unless exempt
20% reduction in court filings parenting matters and higher levels of satisfaction with FDR than court process
Children’s Interests in FDR
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Currently no legislation about the need to consider children’s views in FDR but there is more debate about it – and child focused and child inclusive practice have developed to take account of these needs (beyond participation)
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Both are more about building a parental alliance and parental attunement, but are different processes in terms of involving real children’s participation
Exemptions to Compulsory FDR
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Since 1 July 2008, all parties wanting to apply for parenting orders must have attended upon a FDR practitioner and obtain a Cert unless exempt:
Application is for consent orders (FLA s 60I(9)(a))
‘Reasonable grounds to believe’ there has been abuse of a child by one party or risk of abuse if application is delayed, or has been family violence; or risk of family violence by one party s 60I(9)(b)
Dispute is result of contravention in prior 12 months: s 60I(9)(c),
Application is urgent: s 60I(9)(d)
Incapacity (physical or otherwise) to participate in FDR: s 60I(9)(e)
Circumstances provided for in the regulations: s 60I(9)(f)
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Section 60(i) Certificate
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Types of certificates that can be issued by FDRP provider under s 60I(8) include:
Certificates can state person did not attend FDR because:
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(a) the other party’s fault, refusal or failure to attend
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(aa) practitioner considered it would not be appropriate (under reg 62 and relating to history of FV, safety of parties, equality of bargaining power, risk a child may suffer abuse;
emotional, psychological & physical health of parties, any other matter they consider relevant to FDR)
Certificates can state that person attended FDR -
(b) all made a genuine effort to resolve the issue(s)
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(c) did attend FDR but person/another did not make a genuine effort to resolve the issue(s)
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(d) parties began attending FDR but practitioner considers due to regulations (above) not appropriate to continue
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A certificate can only be filed within 12 months after the latest FDR or attempted FDR: s 26(1)
Family Law (Family Dispute Resolution Practitioners) Regulations 2008Lawyers Role in Mediation
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Until 2009, lawyers were not allowed to be involved in FDR
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A Protocol for the provision of legal assistance in FRCs has supported these arrangements and was updated in 2017 to allow lawyers to continue to act for clients if a matter is not resolved in FDR and proceeds to court
Parties undertaking FDR (and their private lawyer if they have one) sign a ‘statement of good faith’ on entering an FDR process which prevents them from instigating litigation or threatening to do so for the duration of the process (at 8.25)
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Lawyers can either undertake:
An advisory role
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Giving information/advice on range of likely court outcomes if matter proceeds to court, in conciliation conferences, legal aid mediation and settlement mediations
A facilitative role
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As mediator, assisting parties to generate options & coming to own resolution of dispute
-They also often provide advice to clients before and after mediation
Obligations of Advisers and Lawyers
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‘Advisers’ include legal practitioners, family counsellors, FDR practitioners, family consultants
-Advisors must inform parents:
About possibility of entering into a parenting plan and how to get assistance with this: s 63DA(1)
That, when it is in the best interests of the child and reasonably practicable, they could consider option of the child spending equal time or substantial and significant time with each parent: s 63DA(2)
Various other matters set out in that section, including that decisions made by parties should
be made in the best interest of children
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Under s 60D advisers have obligations in relation to best interests of the child
If an adviser gives advice or assistance to a person about matters concerning a child the adviser must:
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(a) inform the person that the person should regard the best interests of the child as the paramount consideration; and
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(b) encourage the person to act on the basis that the child’s best interests are best met:
(i) by the child having a meaningful relationship with both of the child’s parents; and
(ii) by the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(iii) in applying the considerations set out in subparagraphs (i) and (ii) —by giving greater weight to the consideration set out in subparagraph (ii)
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Under s 12B(2) lawyers must provide information to FDR clients about:
the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and
the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and
the steps involved in the proposed proceedings; and
the role of family consultants; and
the arbitration facilities available to arbitrate disputes in relation to separation and divorce
Family Violence and FDR
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Parents who reported a history of FV or safety concerns were more likely to take longer to sort out their matters and more likely to be using one of the three formal pathways
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Australian Law Reform Commission, Family Law for the Future — An Inquiry into the Family Law
System, Final Report (2019) 8.31:
“As FDR has become more widely accessed, there is increasing acceptance among stakeholders that FDR should be available to clients affected by family violence, provided that appropriate safeguards are in place to mitigate safety risks and power imbalances.
Increasingly, LADR models involving not only lawyers but also support workers for both parties have been seen as a viable alternative to court processes for these cases.”
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AIFS Report in 2012 found 15% of those who identified FDR as the way they had sorted out their parenting arrangements also reported physical abuse and/or unwanted sexual activity before or during separation
Confidentiality
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Communications occurring in family dispute resolution are confidential (s. 10H) and anything said in FDR is not admissible (s. 10J) unless an exception applies (s.10H(4)-(7)
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A family dispute resolution practitioner may disclose a communication if they reasonably believe disclosure is necessary to:
protect a child from the risk of harm or prevent serious and imminent threat to the life or health of a person; or
report , prevent likely commission, of violence or threat of violence
prevent or lessen a serious and imminent threat to property; or
report or prevent likely offence involving intentional damage or threat to property
assisting an Independent Children’s Lawyer to do their job properly