TOPIC ONE
INTRODUCTION TO THE AUSTRALIAN FAMILY LAW ‘SYSTEM’
Introduction
§ The complexity of contemporary Australian family law is manifested in a range of contexts, including:
o The constitutional, jurisdictional and organisational contexts;
o Ever-changing and increasingly complicated law and process;
o The diversity of families and their needs; and
o The complex and often competing interests relevant to policy formation, reform and the operation of the family law system
Structural complexity and fragmentation
§ In essence, structural complexity arises from the limited power of the Cth Parliament to legislate in relation to family law under Australia’s Constitution
§ The division of power to legislate in relation to family law across the federal/state divide has
underpinned the creation of a multilayered jurisdictional framework, with some family law issues (e.g.
marriage, divorce, parenting, property and child and spousal maintenance) now being matters falling within federal jurisdiction, and other family law matters (e.g. adoption, child protection, youth justice and laws regarding assisted reproductive technology) falling within state jurisdiction
§ Problems arise when a family that is the subject of, for example, state child protection proceedings, is also the subject of an application for parenting orders at federal level
o There has been longstanding concern about the implications for vulnerable families of gaps and overlaps between federal and state laws, as well as organisations and agencies that interact with families affected by family violence and child abuse, with the result that those families are subjected to multiple interventions or none
Complexity in law and process
§ Legislative complexity is evident at every point: structure and content of the parenting provisions of the Family Law Act 1975 (Cth), including the way parenthood is defined; introduction in 2008 of a significantly more complex Child Support Scheme (CSS), including a formula that is now applied by using an online tool; financial provisions that have been added to incrementally over many years and now include de facto partner financial disputes determined by additional provisions that in most (but not all) ways mirror those applicable to spousal financial proceedings
§ Since 1996, the FLA has been continuously modified with two primary aims:
o To encourage private settlement, primarily in relation to parenting
o To encourage shared post-separation parenting, that is, by parents who never lived together or no longer live together, of responsibility for making major decisions regarding their children
§ A third emphasis has been to protect family members who are victims of family violence and child abuse
§ Australia’s family law system also manifests organisational complexity— that is, in the various fora in which law is applied, in varying degrees and ways
§ At the pinnacle since 2000 is a court system (outside WA) based on essentially identical jurisdictions exercised by two courts, the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCCoA), with different processes and one registry
§ Further, while most parents resolve issues between themselves, since 2006 the extent to which parenting issues are addressed in community sector organisations has increased significantly, although legal advice and advocacy are still sought by a significant minority
§ For families affected by family violence and child safety concerns, interaction with both federal and state systems may be necessary
o The picture is of a system polarised by pathways, by the dispositions of parties to agreement, by associated disparities of bargaining power, and disparities in access to legal advice and processes.
The fundamental features of horizontalization and the relative autonomy of multiple sites of interpretation are intensified [since the mid 90s] in ways that seem to have more diverse results— positively in some cases, but negatively in others
§ And so access to advice and assistance is strongly influenced by socio-economic status; ever-reducing legal aid budgets and narrow eligibility criteria mean that all but parents in the most straitened financial circumstances have to rely on their own resources to pay for legal and other professional support
§ This is a significant disincentive for many parents in the low-to-middle range economic brackets to pursuing what they may consider to be their legal entitlements
§ As such, family law is a jurisdiction in which self-represented litigants are a common occurrence
§ The extent to which people ‘bargain in the shadow of the law’ is thus variable, depending on their disposition and access to resources to inform their decisions, strategies and outcomes
§ Furthermore, the presence of self-represented litigants at appeal stage results in both property and parenting cases that are not well argued and have an impact upon the ability of the resulting decisions to articulate guiding principles
Complexity of family forms and needs
§ Social complexity arising from family diversity is evident at a range of levels:
o Diversity in values (meaning there is no homogenous view on the preferred way to partner or raise children);
o Diversity arising from cultural, Indigenous and religious background and socio-economic status;
o Complexity arising from the spectrum of individual and family functioning (families who engage most deeply with the family law system being less likely to be high functioning)
§ Also relevant are individual factors, and the personal characteristics that affect the way each member of a separated family may or may not adjust to their changed circumstances following relationship breakdown
§ Existing approaches are limited in the extent to which they can respond to diversity manifested in this range of ways, as illustrated by the struggle of the family law system to cope with the spectrum of vulnerability that characterises those who have most need to access it
o This spectrum includes a proportion of families with an entrenchedlevel of vulnerability and disadvantage, commonly including issues related to family violence, child safety, substance misuse, and mental ill-health
§ And this proportion increases as families proceed through the family law system
§ The problem here is that the legislation and the system are predicated on private law system principles and resourcing levels, while child protection is invariably conceived of as a state law matter with a state- funded infrastructure
services, meaning children and families are deprived of sufficient time and attention being given to their matter at all stages of the process
§ So faith in the system is lost, and in the words of Brennan J in Harris v Caladine: ‘It seems the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s 43 of the Act ... It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of it under the Act’
The impetus for reform
§ The need for structural and systemic reform in the area of family law has been a consistent theme in recent reviews in both Australia and other jurisdictions
§ A desire for ‘holistic’ change, rather than ‘band aids’ or ‘tinkering’ was also a strong theme in the submissions and consultations for this inquiry
o As Caxton Legal Centre expressed: ‘If a family law system was to be designed afresh, it’s unlikely its designers would arrive at the current system’
§ Through the stories submitted for this inquiry, the ALRC was told of the distress caused by protracted litigation and the apparent inability to enforce parenting orders once they were made
§ Underpinning these responses are a number of interconnected themes that were outlined in the Discussion Paper:
o A focus on families, not the system
o Advancing the safety and wellbeing of children and families o Collaborative and coordinated service delivery
o Accessibility for all families o Non-adversarial approaches o Valuing children and young people o Building community trust
Australian Government, Attorney-General’s Department: ‘Structural Reform of the Federal Courts’
§ Subject to the passage of legislation before the Parliament, the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (FCC) will be brought together to be known as the Federal Circuit and Family Court of Australia (FCFC)
o Frederico J drew on statutory interpretation and on contractual and social policy arguments to hold that the marriage was void on the basis that consent was not real consent due to fraud
§ However in more recent cases, marriage for the purpose of obtaining citizenship without the knowledge of the other is not fraud for the purpose of this provision (Marquis & Marquis)
§ In the recent case of Rick & King, a husband’s application for nullity for fraud on the basis that his wife had not disclosed she was HIV positive was denied
Not real consent: duress
§ Arranged marriages where the parties consent to the arrangement are unproblematic
§ There have, however, been a number of cases where women have applied for decrees on the basis that their consent was not present because of duress as a result of extreme family pressure or threats
Examples
In the Marriage of S (1980)
§ A was born in Egypt and married in Australia at age 16
§ Watson J: ‘If there are circumstances which taken together lead to the conclusion that because of oppression a particular person has not exercised a voluntary consent to a marriage, that consent is vitiated by duress and is not a real consent‘
Decree of nullity granted
Hallas & Kefalos [2012]
§ A, a woman in her mid-30s with a major depressive illness, was pressured into entering, and remaining in, an unhappy marriage, by her religious adviser
§ Held: her illness and reliance on her adviser were insufficient to establish that her ‘will was overborne’ (although case law seems to be ageist on this point; more likely if you’re younger)
Decree of nullity denied
Kreet & Sampir [2011]
§ A was involved in a relationship with a man who was disapproved of by her parents
§ They persuaded her to return to India on the pretext they would support her marriage, but then confiscated her passport and presented her to marriage with another man
Decree of nullity granted
(more coercive, violent than mere
pressure)
§ The Criminal Code Act 1995 (Cth) s 270.7A(1) now includes a definition of forced marriage as one induced by any of the following:
a) force;
b) duress;
c) detention;
d) psychological oppression;
e) abuse of power;
f) taking advantage of a person's vulnerability
Radtke & Pagano [2016] FamCA 784
Significance: § An example of a marriage entered into by duress warranting a decree of nullity
Material facts:
§ Applicant wife filed an application seeking a declaration of nullity
§ The relationship between her and the respondent commenced when she was not yet 18 and the respondent was 26
§ The respondent was, at the time, in Australia on a working holiday visa
§ He moved into the applicant’s apartment uninvited and their relationship soon became abusive/violent
§ The applicant was working full-time to support them both; the respondent expected her home when not working, and prevented her from having a social life
§ The respondent had planned their marriage so he could stay in the country, threatening the applicant if she didn’t acquiesce
§ She asserts she felt trapped, didn’t actually want to go through with the marriage Issue: § Was the marriage a nullity on the basis it was void for duress?
Reasoning:
Foster J:
§ The evidence of the applicant leads to the inescapable conclusion that the respondent imposed upon the applicant and took advantage of her youth and lack of maturity
§ The relationship, at relevant times prior to the marriage and at the time of the ceremony, was characterised by conduct of the respondent that was coercive, controlling, threatening and abusive all for his own purposes, presumably to assist any application for him to remain in Australia
§ As was said in Re S, “If there are circumstances which taken together lead to the conclusion that because of the oppression a particular person has not exercised a voluntary consent to marriage that consent is vitiated by duress and is not real consent”
§ The crucial question, particularly where a marriage is involved, is whether threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual
§ In the circumstances of the present application the court is readily satisfied that the consent of the applicant to marry was not a real consent but was a consent obtained by duress by reason of the conduct of the respondent outlined above Result/outcome: § The marriage was declared a nullity
Ratio: § Duress at the time of the marriage ceremony is critical – must show some overbearing force operating at that time
Divorce
§ In Australia, the sole ground for granting an application for a divorce order is that the marriage has broken down irretrievably, which is only established if the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months
Separation
§ To encourage reconciliation, the legislation provides that the parties may resume cohabitation for one period of up to three months and still count the period of separation prior to that resumption towards the twelve months: FLA s 50
§ It is also clear that to meet the requirement of a 12-month separation, the parties may be living separately and apart although they are living under one roof
o As Watson J says in In the Marriage of Todd: ‘In my view, ‘separation’ means more than physical separation—it involves the destruction of the marital relationship. Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships. When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged
separation. Whether there has been a separation will be a question of fact to be determined in each case’
Price & Underwood [2008] FamCAFC 46
Significance: § Demonstrates that the inquiry is very case-by-case, fact-dependent
Material facts:
§ A married couple has been living in separate residences since ‘originally’
separating in 1991 and subsequently reconciling
§ The husband, who was terminally ill, applied for a divorce on the basis that they’d been living separately and apart since 2005, while the wife said that she only became aware that the relationship was at an end in 2007
Issue: § Had the husband sufficiently communicated his intention to separate to the wife?
Reasoning:
May, Boland & Ryan JJ:
§ It is appropriate prior to our discussions of the issues agitated on appeal to set out the relevant subsections of s 48 of the Act:
o (1) Application for divorce requires marriage has broken down irretrievably o (2) That is established if the parties have separated and lived separately and
apart for a continuous period of not less than 12 months...
§ Unsurprisingly, the question of the interpretation of ‘broken down irretrievably’
and ‘separation’ arose for consideration shortly after the introduction of the Act;
in the marriage of Todd & Todd, Watson J referred to the meaning of separation and said ... [see quote above].
§ It is also clear from s 49(2) that a separation (i.e. cessation of cohabitation or a severance of the marital relationship) may be found to exist notwithstanding that the parties continue to occupy the same residence or to perform household duties, one for the other
§ Conversely, the absence of residence under one roof and/or the performance by either party for the other of household duties do not necessarily establish a separation or a state of non-cohabitation
o The point made here is that parties may live apart and regard their marriage as continuing
§ Whilst it was not in dispute that the husband made known to the wife in April 2007 that he wished to divorce, we were not referred to any evidence of the husband directly, or otherwise by his actions, conveying to the wife that he had made a conscious decision to bring the marriage to an end in October 2005 or any time thereafter up until April 2007
§ Perhaps as a consequence of the learned Federal Magistrate’s failure to consider the parties’ marriage prior to October 2005 he overlooked the importance, on the facts of this case, of the necessity for the husband to communicate to the wife his intention to end the marriage
§ The attitudes and intentions of the parties may be spoken or unspoken; where both parties withdraw from recognition of the marriage the surrounding circumstances would often make it easier to establish separation
§ Where one party only has formed the relevant attitude and intention, they should have been communicated to the other party directly or indirectly
o Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party
Result/outcome:
§ The wife succeeded in having the divorce order set aside on the basis that the husband’s intention to separate in 2005 was not communicated to her and, in the circumstances, could not be inferred on the basis of separate residences alone Ratio: § An intention to separate must be unequivocally communicated
Where the divorce applicants are parents
§ Where are children involved, some of the provisions of the FLA evidence more paternalism regarding the parties and concern for their children, such as:
Who is a Parent?
The ‘natural’ or ‘ordinary’ meaning
§ Section 4 of the FLA provides rather minimally that parent ‘when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child’
§ Elsewhere there are specific provisions on assisted conception and surrogacy but it has remained a point of controversy in the court whether these provisions conclusively determine the meaning of parent in those circumstances or whether they may be overtaken by the ‘natural’ meaning
§ In the 1999 case In the Marriage of Tobin, the Full Court held that, for the purposes of the FLA, ‘parent’
should be given its ‘natural meaning’: the biological mother or father of the child
o In taking this view, the Full Court considered various dictionary meanings of ‘parent’ and, for FLA purposes, determined the natural meaning was ‘a person who has begotten or borne a child’
§ This case has not been overruled by the Court, although the FLA has been amended to extend legal status to non-gestational and non-genetic parents in assisted conception and surrogacy
§ In the 15 years that have passed since Tobin other courts have revisited the question of ‘ordinary’
meaning of parent and broadened it considerably o In H v MIMA, the Full Federal Court held that:
§ ‘Today ... not all parents become parents in the same way … This is not to say that parents do not share common characteristics; everyday use of the word indicates that they do ... Typically, parentage is not just a matter of biology but of intense
commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own’
§ So it is today viewed very much as a question of fact Parentage testing
§ An order to test for parentage (which in all cases to date has been of paternity) may be made under section 69W if ‘the parentage of a child is a question in issue’: FLA s 69W(1)
§ This requires there to be some reasonable basis to doubt that established paternity is correct; the court will not make a testing order simply on request
Parentage in assisted conception
§ Both state law and the FLA make specific provision for parentage in situations of assisted conception like:
o The use of donor sperm through a clinical procedure of intrauterine insemination or informal home insemination;
o The use of donor sperm, eggs or donated embryos through IVF
§ These have all been interpreted as included in what is still referred to in the FLA as ‘an artificial conception procedure’: s 4(1)
§ Legal parentage is based on the fact that the birth mother and her consenting partner are the legal parents of the child, regardless of genetic connection – this status operates from birth and occurs automatically
§ Thus, in cases of assisted conception the child is the child of the woman who gives birth and her partner for the purposes of the FLA, regardless of genetic link, if:
o The couple are married/de facto at the time of the conception attempt: s 60H(a); or o The partner consented to the conception attempt: s 60H(5)
§ NB: such consent is presumed, but can be rebutted on the balance of probabilities by contrary evidence
Severing the status of donors
§ Unlike the matrix of state and territory laws that both sever the link to donors and accord parental status to the birth mother and her partner, the FLA only included the according of status to the genetically unrelated parent and did not include provisions severing the relationship with the genetic parent
§ This led to debate about whether a court could recognise ‘natural’ or ‘ordinary’ male genetic parents/sperm donors as legal parents under the FLA
§ This debate was overtaken by legislative amendment in 2008, s 60H(1)(d) was amended to clarify that a
‘provider of genetic material’ is not a legal parent unless they are the consenting partner of the woman who gives birth
Parentage in surrogacy
§ The woman who gives birth to a child is a legal parent to that child under Australian law, regardless of whether she is a genetic parent or any arrangement that she has entered into about the future parenting of that child
§ The ‘enlarging’ interpretation of the ‘natural’ and ‘ordinary’ approach to parenthood has been applied on occasion in relation to male parents in surrogacy arrangements with a surrogate who has no married or de facto partner
o Then the intended mother is left to make do with parental responsibility or ‘adopt’ the child as a
‘step-parent’
§ Through the 2000s all states and territories (except the NT) introduced specific parentage transfer regimes for parentage in surrogacy with a complex and varied range of procedural and substantive requirements
§ In general these laws require that parties have undertaken certified counselling, obtained independent legal advice, entered into a written agreement and sought order from the court on a consensual basis within a specified period after the birth of the child
§ Although there still appears to be a greater number of surrogacy births than orders sought, suggesting that there are still some parents who do not regularise their legal status in this way
TOPIC SEVEN
PARENTING DISPUTES: REFORM OF PARENTING LAW ALRC: ‘Family Law for the Future’
Simplifying and clarifying judicial decision making
§ Submissions and academic commentators have criticized the complexity of the decision making framework in Pt VII of the FLA; these include concerns about:
o The lengthy, complex, and repetitive list of factors to be considered in determining a child’s best interests in s 60CC;
o The confusion caused by the division between ‘primary’ and ‘additional’ considerations in s 60CC;
o The requirement to assess a child’s best interests multiple times (in the context of the
presumption of equal shared parental responsibility, the provisions for care time arrangements, and generally in terms of the proposed arrangements); and
o The overall complexity of the decision making framework, and the risk that it distracts from an overall consideration of the best interests of the child
§ It’s critical that legislative guidance on making decisions about the care of children is as simple and easy to understand as possible, particularly insofar as to:
o Assist people without legal representation to understand their obligations under the Act and how the court will make decisions about children;
o Avoid misunderstandings about what the guidance contained in the Act means;
o Reduce the length and complexity of legal documents required for proceedings, thereby reducing costs to litigants, and reducing delay; and
o Reduce the length and complexity of judgments in parenting cases and enhance their comprehensibility for litigants
§ The ALRC proposes that this decision making framework be replaced with a simpler framework that:
o Emphasises the paramount importance of the best interests of the child;
o Provides core factors to be applied in determining what is most consistent with a child’s best interests, with an emphasis on safety, while recognising that other factors may be relevant to a particular case; and
o Emphasises that parenting arrangements should be shaped around the circumstances of the particular child
§ In relation to parental responsibility, the ALRC recommends that the practical effect of the current law be preserved, but that the presumption of equal shared parental responsibility be replaced with a
presumption of joint decision making about major long-term issues
Recommendation: Section 60CC of the FLA should be amended so that the factors to be considered when determining parenting arrangements that best promote a child’s best interests are:
a) what arrangements best promote the safety of the child and the child’s carers, including safety from family violence, abuse, or other harm;
b) any relevant views expressed by the child;
c) the developmental, psychological, and emotional needs of the child;
d) the benefit to the child of being able to maintain relationships with each parent and other people who are significant to them, where it is safe to do so;
e) the capacity of each proposed carer of the child to provide for the developmental, psychological, and emotional needs of the child, having regard to the carer’s ability and willingness to seek support to assist them with caring; and
o Also increasing judicial reluctance to refuse fathers contact with their children, even in cases involving allegations of family violence
o Reflecting this pressure, ‘equality’ messages became expressly articulated in Part VII:
§ Introduction of s 61DA à presumption of ESPR, unless not applicable due to family violence or abuse, or rebutted because not in child’s best interests
§ Introduction of s 65DAA à requiring courts proposing to make orders for ESPR consider making orders for equal time, and failing that, substantial and significant time, if to do so would be in child’s best interests and reasonably practicable
o Thus, while the law did not say that parents who separate must equally share the care of their children, there was strong encouragement to do so, in the form of complex legislation that emphasised equality above other outcomes
§ So it seems: ‘equality’ imperatives > safety imperatives
§ Post-2006 amendments, AIFS reported that adjudicated orders for shared time (defined for the study as 35–65% of nights with each parent) increased from 2% pre-reform to 13% post-reform
§ This was concerning because adjudicated parenting cases commonly have features (including allegations of family violence and child abuse, and/or ongoing high parental conflict) that are incompatible with shared time arrangements
o cf AIFS research pre-2006 finding that shared parenting time was mainly utilised by co-operative parents and in positive circumstances
§ So again, it appeared that the 2006 amendments’ formal equality messages were prevailing over
amendments occurring at the same time aimed at protecting children from family violence and abuse (see s 60B(1)(b); this was the case despite increasing awareness in Australia from the 1990s of the damaging impact on children of experiencing family violence and abuse—whether directly or indirectly
§ 2012 amendments:
o As a result, the government amended the FLA again to improve the family law system’s identification of and responses to family violence and child abuse
o This included making clear that protection of children from harm was to be accorded ‘greater weight’ than the promotion of a ‘meaningful relationship’ between children and both parents:
FLA s 60CC(2A)
o However, post-2012 amendment research by AIFS suggest that courts are still concerned to ensure children’s relationships with both parents be preserved, except in cases where evidence is unambiguously in favour of an outcome inconsistent with that approach
§ Less ‘adequate priority’ continues to be placed on ‘protection from harm’ than on the promotion of a ‘meaningful relationship’ between fathers and their children
§ Their child was diagnosed with a number of challenging medical conditions requiring a high level of care
§ The primary judge found that the emergence and diagnosis of the child’s difficulties were material changes of circumstances since the signing of the BFA, relating to the care, welfare and development of the child: s 90K(1)(d)
§ However, the primary judge was not satisfied that, having regard to the terms of the BFA, the wife would suffer hardship if the Court did not set it aside
Reasoning:
Strickland, Aldridge & Austin JJ:
§ The Court must determine hardship by undertaking some comparison between the position of the child, or the person with caring responsibility, if the agreement remains in place and the position of that child or person if the agreement is set aside
§ The evidence permitted some comparison between the value of the property available for division if the Agreement stood (up to $100,000) and if it was set aside ($4,000,000 approximately); on that basis, hardship was readily established
§ The wife’s case was that the parties had been in a relationship for 10 years, during which two children had been born; a significant share of the care of those children, including one who has a significant disability, has fallen upon the wife, and that care is likely to continue
§ The contributions made by the wife taken together with the relevant
considerations under s 75(2) of the FLA cannot be adequately satisfied out of the smaller pool as opposed to the larger pool
§ These grounds succeed
Result/outcome: § It followed that the orders of the primary judge were set aside
Summary of financial agreements 1. Does the agreement meet the formal requirements of s 90G/90UG?
§ Signed, receipt of independent legal advice, certificate of same, etc.
2. Are there circumstances that would justify a court setting it aside under s 90K/90UM?
§ Hardship, unconscionability, duress, changed circumstances 3. Does s 90F(1A)/90UI(2) apply?
§ Party unable to support themselves without social support (can’t oust jurisdiction of the court to make an order of spousal/partner maintenance in that case)
4. Should it nonetheless be treated as a contract or purported contract under the principles of law and equity (s 90KA/90UN)?
5. Are there circumstances that mean it should be set aside under the principles of law and equity (s 90KA/90UN)?
Reform of Property Law
§ In August 2018 a special double issue of the Australian Journal of Family Law was published which contained papers from a seminar on Anglo-Australian financial remedies law in 2017
§ Fehlberg and Sarmas proposed for discussion reforms to Australian family property law which would specify the principles to be taken into account in determining what property outcome is just and equitable.; these were (in the order of priority listed):
o The reasonable housing requirements of any dependent child of the parties;
