A recent decision of the Full Family Court (Harris & Harris [2011] FamCAFC 245) has clarified the treatment of discretionary trusts in property settlements.
The case concerned a family trust which was established by the husband's father. After the husband's father's death, the husband's mother became the appointor of the trust. The principal beneficiaries of the trust were the husband's parents, their children, that is the husband and his sister, and the “lineal issue” of the husband’s father.
In Kennon v Spry the court held that in order for the assets of a discretionary trust to be considered the property of a beneficiary for property settlement purposes, there must be 'direct' or 'indirect' control of the trust by that beneficiary.
In the first instance the court held that the trust’s assets should be treated as the husband’s property because they were indirectly controlled by him. The assets of the trust were therefore held to form part of the pool available for division between the parties.
The husband appealed this decision on the ground that he did not have sufficient control of the trust. The wife argued that the husband had indirect control over the trust through his mother who acted as a “puppet” for his interests. However the wife failed to provide any evidence to support this argument and consequently the Full Court held in favour of the husband. It found that the husband had no indirect control of the assets of the trust and therefore they should not be considered as assets of the husband and thus should not be included in the property pool available for division.
Comment from Mark Streeter - Sydney Lawyer
Harris is significant because it explains the concept of indirect control as mentioned in Kennon v Spry. It establishes that in order to prove that there is indirect control of a trust, evidence must be provided to support a 'puppet' scenario.
It is therefore important when considering estate planning or business planning that careful consideration is given to the structure of the trust.
A recent decision of the Family Court has raised issues regarding how ageing couples may be affected by property settlements should they be physically separated due to declining health.
Mr Stanford purchased a house in 1962 with his first wife. Seven years later he divorced and remarried and his second wife moved into the home. Both Mr and Mrs Stanford had children from previous marriages. In 2008 Mrs Stanford suffered a stroke and was placed in full-time care while Mr Stanford remained living in the family home which was now worth $1.375 million. Mr Stanford provided $40,000 for Mrs Stanford's care and visited her three times a week.
Mrs Stanford's daughter believed the care her mother was receiving was inadequate and therefore requested that she be moved to another aged care facility nearby, which required a $300,000 bond. No funds were available to pay this bond and hence Mrs Stanford’s daughter commenced legal proceedings on the basis that Mr and Mrs Stanford were separated and that the matrimonial home should be sold and the proceeds used to fund the wife’s care.
In the initial hearing the Federal Magistrate declared that Mr and Mrs Stanford were separated for the purposes of family law despite the fact that they did not intend to separate and lived apart only because Mrs Stanford required permanent care. This decision was based on the fact that the couple would "never live together again" and that most of the elements of a normal marital relationship had ceased to exist. The Court ordered the house be sold and $612,000 go toward Mrs Stanford’s care.
This result sparked an appeal from Mr Stanford's children who urged the court to "recognise and enhance marriage as a voluntary relationship entered into for life, and protect the institution" and argued that the court had no jurisdiction to order a property settlement since the couple had not separated. The Full Court disagreed saying that the Court "clearly had the power" to make an order for a property settlement.
However the court overturned the Federal Magistrate's decision, stating that the Judge "failed to consider the various options ... and in our view wrongly exercised her discretion". The Full Court based its decision on the fact that Mrs Stanford would not have needed a lump sum payment to provide for her financial future. It also noted that her health was deteriorating and hence she may not benefit from being moved to the higher-cost facility. The court was awaiting final submissions from both parties when Mrs Stanford died.
The decision in Stanford’s case confirms that elderly couples who remain married but are physically separated because of one party’s ill health are separated for the purpose of family law and that consequently the Family Court has power to order property settlements in relation to the assets of such couples. This decision is likely to open a new wave of legal action.
Interestingly, new research by Paul Amato, a professor of sociology at Pennsylvania State University, suggests that a “good divorce” is no better than an unhappy marriage! When a range of wellbeing measures were examined the children of parents with ‘amicable’ divorces fared the same as children of parents with ‘unpleasant’ divorces.
When the results were showed to members of the public by the Sydney Morning Herald in February, responses were mixed. Barrister Dixie Coulton agrees with Amato’s research, that there will inevitably be conflict in any divorce proceedings- over issues such as child support, the division of assets and parenting arrangements- conflict which undoubtedly has an adverse impact on a child. Although the Family Court’s approach to parental determination has become less adversarial, and mediation and counselling are strongly encouraged, issues such as economic disadvantage and alienation from a parent frequently occur despite the amicability of the divorce.
Academic Patrick Parkinson is also in strong agreement. He argues that divorces do not always end the conflict between parents, and that sometimes it can be better for the parents to stay together for the sake of the children”.
Conversely, feminist Eva Cox points out the fact that the children who fared badly as a result of a divorce are a substantial minority of divorced households in total, and in fact, most children of divorces are happy and well-adjusted. Similarly, psychologist Michael Carr-Greig calls the research an “oversimplification” that is inconsistent with his experience. Although parents who disappear from their children’s lives and parents who constantly fight in front of their children may cause long-lasting damage, Carr-Greig says that to assume friendly relations do the same damage “flies in the face of common sense”.
Although undecided as to whether an “unhappy marriage” is better for the children than a “friendly divorce”, all parties agree that reduction in conflict between parents and the demonstration of respect for one another, will undoubtedly be more beneficial for both the parents and children - whether in marriage or in divorce.
It seems clear from the commentators that the prospects of a ‘better’ divorce increase if you are able to avoid Court as the means of resolving your disputes. Dispute resolution mechanisms such as conciliation, mediation or settlement conferences are available to structure settlement negotiations. For disputes involving children, family counsellors (rather than lawyers) can facilitate a structured program of discussion that will assist in issue identification and dispute resolution subject to the parents and other adults submitting to the process in a co-operative manner.
We are often asked the question what percentage will I get of the matrimonial property after separation? A recent decision of the Court enabled a wife to receive 100% of the matrimonial asset pool because she chose to follow 4 crucial steps closely. Read on to discover more about the way in which matrimonial property is divided.
Step 1: Identification and valuation of assets:
The first step involves determining what assets are to be divided between the parties. The general rule is that all assets must be taken into account whether they are acquired before or during the marriage or after the separation. It is necessary to demonstrate full and frank disclosure when identifying and declaring assets.
Step 2: Contributions:
The next step is to assess each party’s contribution to the asset pool. Contributions include both financial and non financial such as parenting and homemaker contributions.
Step 3: Future Needs:
The next step is to assess the future needs of both parties taking into account factors such as age, health, income earning capacity, property, whether the party has the care and support of children and the financial circumstances of any new relationship. The presence of such factors can operate to increase or decrease the amount allocated to each party.
Step 4: Just and Equitable Outcome:
The final step is to consider the practical effect of any proposed settlement to achieve a result that is just and equitable in the circumstances.
A “percentage” splitting of the asset pool is often applied in order to ensure that the effect of their orders does not vary between the date of the judgment and the realisation of the assets to give effect to the orders. Accordingly, the “percentage” is the conclusion rather than the starting principle upon which property adjustments are made.
Each case is determined on its own facts. In the case of Schroeder & Drummond (a pseudonym pursuant to Section 121(9)(G) of the Family Law Act 1975) there was a small property pool and the mother had made a greater financial contribution as a homemaker and parent. The father had not paid Child Support and the mother had sole parental responsibility. The father had failed in his obligations to provide full and frank disclosure of his financial assets and resources including an inheritance from his father. Accordingly, the Court awarded 100% of the “known assets” to the wife but excluded any “unknown, un-quantified” asset of the husband consequent upon his inheritance.
The case of Nyles & Nyles highlights the importance of
giving full and frank financial disclosure at the time that terms of
settlement are being entered into of any circumstance which may impact
the future value of an asset even if that event has not yet occurred and
its future worth is unknown.
In this case the parties entered into consent orders and a Binding
Financial Agreement (“BFA”) dealing with the adjustment of property
interests in 2004.
According to the terms of settlement the husband was to receive 60% of
the net assets which were set out and annexed to Binding Financial
Agreement. At the time the parties entered into the BFA and consent
orders the wife was a director of a public company and the shareholding
in that company was disclosed to the husband in the asset schedule
attached to the BFA.
Floating of Company on Stock Market
At the time the parties signed the terms of consent and the Binding
Financial Agreement however, the wife’s company was in the process of
converting from a private company to a public company. The company
floated on the stock market less than 2 months after the Agreement was
signed, the wife sold her shares and made a large profit.
The Husband then sought to set aside the Binding Financial Agreement by
making an Application to the Court under s79A of the Family Law Act for
reason of non-disclosure of relevant information and the fact that he
relied on the wife’s assertion as to the value of the assets in making
the Agreement.
Full and Frank Financial Disclosure
Full and Frank financial disclosure is a fundamental element of justice
and applies as much to out of court settlements as it does to contested
proceedings.
The complicating factor in this case was that the wife’s shares were
subject to strict confidentiality obligations. The wife was not able to
provide the husband with any documents with respect to the pending
commercial transactions due to confidentiality issues. The Husband’s
evidence was that the Wife disclosed the floating of the shares at the
time it was occurring but alleged the wife said that the float would not
happen for a number of years and that the value of the shares would be
minimal. The wife’s evidence was that she directly discussed with the
husband the possibility of the shares being floated and made an offer of
settlement during mediation in which her proposal involved the transfer
of some of those shares to the husband which he failed to take up.
The husband was advised by his solicitors that it was not in his best
interest to enter into the Binding Financial Agreement until further
disclosure was to hand. The husband therefore failed in his Application
to set aside the consent orders and the BFA as it could not be said that
he was induced to enter into the BFA by the misconduct of the wife and
he had made an informed decision. This was despite the fact that the
Court actually found that the wife had failed to make full and frank
financial disclosure and to some degree acted fraudulently.
A recent public breakup of two high profile celebrities highlighted how valuable assets can be specifically included in Prenuptial Agreements.
"Kim can keep her ring” so says Kris, but only if she pays him a handsome US$2 million! As the celebrity marriage between Kim Kardashian and Kris Humphries ends, it highlights for those of us on the side-line the wisdom of a pre-nuptial agreement (called a Financial Agreement in Australia under the Family Law Act).
A prenuptial agreement appears to have been a wise precaution. Did you know that in Australia, Financial Agreements can be made by de facto or married couples before, during or after the relationship? Financial Agreements provide certainty to the mechanisms and processes by which the parties can separate their affairs, if need be, with certainty. US$2 million for a 20.5 carat ring – the question remains will Kim buy it?
On 7 November 2011 Lawyer Mark Streeter was asked for further comment on this story by nineMSN News. Read Mark's response at >>nineMSN NEWS Web Portal
When couples with children separate it can mean additional complexity over custody and shared parental responsibilities. Yet what if the child dies? Who decides who can arrange the funeral.
There is a NSW Supreme Court judgment resolving a very difficult situation in which the parents of a deceased 14 month old baby were arguing about the organisation of the funeral and the burial site for their little child. Sadly, each year the Family Law Courts see a number of very serious disputes about the care of children. In this case, the child died as the result of a serious illness. After a coronial and post-mortem examination, each of the parents made separate arrangements for the child’s burial.
The mother made an urgent application to the Supreme Court seeking an injunction restraining the coroner from releasing the body of the child to the father. She also requested that only she have the carriage of the funeral arrangements. The application was made at short notice by filing a Summons in the Supreme Court with supporting affidavits. Case Law provides that, as a general principle, the Executor named in the Will stands as the person responsible for the burial of the deceased. In the absence of a Will, the next in order will be the person entitled to a grant of Administration.
Understandably, in this case, each of the parents had an equal entitlement to the administration of the funeral arrangements.
Therefore the principle extracted from previous cases was: (a) Where or two or more persons have an equal ranking privilege, the practicalities of burial without unreasonable delay will decide the issue;
Interestingly, in this case the Court, based on a practical and evidentiary basis, granted the mother’s request and appointed her to have conduct of these arrangements. The proceedings were brought on an urgent basis on the Thursday and the decision was made the following Monday. Having regard to the nature of the dispute, the Court ordered that each party bear their own costs of the application.
A very difficult and sad end to a life cut tragically short.
Who decides what is right for a child? The parents or the Government? Well both!
By Australian law parents jointly share the responsibilities concerning the care, welfare and development of their children. Parental responsibility is clearly defined in the Family Law Act 1975 under Section 61B. This includes, in relation to a child: “(a) All the duties, powers and responsibility and authority which, by law, parents have in relation to children.”
However the Courts can legally override a parent’s decision. Section 67ZC(1) of the Family Law Act states that the “Court also has jurisdiction to make orders relating to the welfare of children.” This responsibility between parents and the Courts can present complications as demonstrated in these two cases
1. Sterilisation of a child
A previous Family Court authority, particularly Marion’s Case, found that there were limits to the scope of parental power. Interestingly, Marion’s Case held that the decision to authorise sterilisation of an intellectually disabled minor fell outside the ordinary scope of parental powers under the Act. However, the Family Court could authorise this as a procedural safeguard to ensure the best protection of the interests of the child.
There is a body of Family Court decisions considering whether to approve or reject authorisation for the therapeutic and non-therapeutic procedures and treatments to children.
2. Can parents determine treatment of a premature baby?
In another case, an application was made to the Court seeking a declaration as to whether or not the instructions provided by the parents to the hospital and its staff were a “special procedure”.
The facts were tragic. A little baby, the subject of this application, was born at 27 weeks premature and had been required ongoing assistance to breathe since birth. The baby had suffered severe and irreversible brain damage.
The parents sought to:
(a) Remove and not replace the endotracheal tube from the airway of the baby; and
(b) If pain or respiratory distress provide palliative care and administer such medication as is necessary and proper.
The Family Court held that the particular facts and principles of law did not qualify as a “special case” that required the Court’s authorisation. The Court affirmed the decision by the parents and the Hospital to apply and noted that in circumstances of ambiguity it is appropriate to seek Court Orders in relation to treatment decisions.
A Power of Attorney is a legal document enabling someone to act on another person’s behalf. It can be very useful and is worth considering. However the person who grants this ‘power’ needs to have the ‘capacity’ to do so.
In July 2010, a case in the Supreme Court of NSW, highlighted that a Power of Attorney can be considered void - even if they have been used over several years. The case of the case of Szozda –v- Szozda [2010] NSWSC 804 was decided by Justice Barrett. It has widely been reported as a significant “clarification” to the test of whether or not an individual has the capacity to create a Deed of Power of Attorney.
The case is a story of Polish immigrants, untimely family deaths, real estate properties, discretionary trusts, family business and the complications that can arise between siblings.
The widow Mrs Aneila Szozda executed 6 separate Power of Attorney Instruments between March 2004 and December 2007 for her children and grandchildren. One of these Power of Attorneys was used to exercise the proxy votes of shares owned by the Attorney to Mrs Szozda. The Application to the Court sought declaratory orders as to whether or not Mrs Szozda had the capacity to grant the General and Enduring Power of Attorney in September 2006.
At law, people over 18 are presumed to have legal capacity. However, having raised prima facie evidence of an individual’s incapacity (usually medical evidence) the onus then shifts back to the party seeking to assert the validity of the document and the capacity of the individual to execute it at that time.
The test of the validity of the capacity of a person to execute a Power of Attorney was generally considered to be: ‘an enquiry as to whether or not the principal’s understanding of the nature and effect of the Power at the time of execution of the instrument.’ It was presented to the Court that Mrs Szozda often forgot non-regular appointments (such as hairdresser appointments) although was able to remember things such as her regular Sunday outings with a friend.
His Honour Justice Barrett found that the decision to grant a General and Enduring Power of Attorney differs from that involved in making of a Will but should be regarded as a similar or even greater level of complexity.
If capacity, in the relevant sense, is absent when the Power of Attorney is granted, the general law position is that the Power of Attorney instrument is void.
• The Courts look at each case on its own facts and weigh up the evidence.
• In this case the Court found that Mrs Szozda did NOT have the capacity at the time of executing the document to understand the nature and effect of her actions.
HELPFUL TIP:
Ensure that your estate planning documentation is up to date before there are any risks or concerns over “capacity”.
The Guardianship Tribunal is a specialised dispute resolution forum with jurisdiction narrowly defined by legislation. While its jurisdiction may be limited, the orders it makes can be far reaching and have significant impact.
The Guardianship Tribunal exercises concurrent jurisdiction with the protective division of the Supreme Court in respect of applications concerning:
(a) Review, operation and effect of Powers of Attorney (under Power of Attorneys Act 2003).
(b) Applications for appointment or review of Financial Managers (under the Guardianship Act 1987 as amended).
(c) Applications for appointment or review of Guardians (again under the Guardianship Act 1987 as amended).
The Tribunal has the power to appoint third parties to make decisions on behalf of the person who is the subject of the application. Legal representation in the Guardianship Tribunal is rare and a party must seek leave to be represented. It is also rare for costs to be awarded (i.e. each person bears their own) by the Tribunal. The nature of the jurisdiction is both inquisitorial and beneficial. It rigorously applies the principles under Section 4 of the Guardianship Act to promote and protect the best interests of the person who is the subject of the application.
Helpfully, our senior technical specialist, Mark Streeter, has appeared in over 33 matters as Solicitor Advocate in the Guardianship Tribunal over the last 3 years. Mark has conducted training for financial planners and accountants on the areas of law relating to the Guardianship Tribunal.
Many Grandparents who have been actively involved in the lives of their grandchildren are affected when their children divorce or separate. A restriction on the time spent with their grandchildren, or a refusal to allow access to their grandchildren due to a relationship breakdown between the parents of the children, can be quite a traumatic experience for both themselves and their grandchildren. Under such circumstances, what visitation rights do Grandparents have to see their grandchildren?
All Grandparents will be pleased to know that the principle guiding the Family Law Act of 1975, remains as ‘what is in the best interest of the child.’ The Family Law Act recognises the importance of the relationships that each child has with their extended family, particular grandparents and the Court takes these relationships in account when determining ‘what is in the best interest of the child.’ This includes the important issue of grandparents visitation rights to their grandchildren.
What can grandparents do if the communication between themselves and the parents of their grandchildren has broken down?
1. Contact your nearest Family Relationship Centre or another family Counseling organisation with a view to mediating an arrangement regarding visitation rights or the amount of time you are able to spend with your grandchild.
2. If this is unsuccessful, then the Grandparents must ask the Mediator to issue a Certificate under Section 60I of the Family Law Act [a certificate that attests to the fact that you’ve attempted to achieve a family dispute resolution]. The Grandparents then must seek legal advice to assist them with the completion of an application form for the Court.
This is good news for Grandparents concerned about visitation rights. For further friendly advice, please call Streeterlaw Sydney Lawyers on 02 9264 8666 and speak to our Client Service Specialist Mrs Gemma Brouggy.
When is Covert Surveillance illegal and when does it serve a Legitimate Forensic Purpose?
Have you ever wanted to record a phone conversation as evidence for a family law dispute. How about discretely filming a video of a meeting of a spouse meeting someone else? What about recording what your children say when you are not there? Take care before you press record as you may be in breach of the law. It all comes down to consent.
Some legal court cases throw up cross-jurisdictional issues in which Federal Courts need to have regard to State Laws and vice versa. The Courts don't operate independently. A breach of an Australian Federal law may have impact on a State based Family Law matter.
A recent decision (5 August 2010) of Justice Fowler in the Family Court of Australia at Sydney considered the application of the Surveillance Devices Act 2007 (NSW) and its application in a case in respect of children’s “independent expert”. The starting point for His Honour’s determination was that a mother had procured, in contravention of the provisions of the Surveillance Devices Act 2007, a recording of the interviews between the Court appointed independent expert and the children of the marriage.
Section 7 of this Act prohibits a person from installing using or causing to be used a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party. The penalty is 100 penalty units or 5 years imprisonment or both. There are some limited exceptions but principally a party must consent to the listening device. No such consent was provided by the Independent Expert.
His Honour, Justice Fowler, had a case before him which had already run for 8 days. A transcript and copy of the recording were produced to the Court by the mother in response to a Notice to Produce. His Honour ordered that it was in the interests of justice, the public (who expect the Court system to act efficiently) and also in the interests of the parties that a copy of this transcript and recording be provided to the Independent Children’s Expert before she was cross-examined.
Comment from Mark Streeter Sydney Family Law Lawyer
This case illustrates an application of the principles of cross jurisdictional issues in the Family Court.
Anyone contemplating using Surveillance Devices (audio, video or data) should consider the law regulating this area and ensure they act lawfully. There remains the possibility the mother could face criminal penalties for potential breaches of the Federal Surveillance Devices Act regardless of what is decided in the Family Law Court.
This area of law is know as Right of Occupancy. Before you go and change the locks take care.
Can you lock your ex-partner out of the home?
Properties are often owned “jointly” by parties married or de facto partners subject to any express written agreement both parties have a concurrent legal right to occupy the premises.
So can I lock my ex-partner out? The answer is maybe. You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry to the premises.
Accordingly you should seek the assistance of either their expressed consent (not to re-enter) the property or alternatively seek the assistance of a Court.
The Family Courts will entertain applications by parties who seek the exclusive occupancy of the matrimonial home. The Courts will take the holistic approach that will examine the financial capacity of one party (or the other) to rent a property elsewhere, the arrangements for the care of the children (i.e. who is the primary caregiver) and how a “moving out” would affect the ability of this primary caregiver to continue in this role.
The Court will also consider violence or other conduct between the parties and their ability to self-regulate their behaviour. The Court will not consider it to be in the best interests that children be constantly exposed to loud, verbal altercations or arguments even in the absence of physical violence.
The Court may consider the physical layout of the premises to see whether or not it is possible to physically isolate a part of the house to continue occupancy but through a separate entrance with little or no common use areas.
Can my de facto partner lock me out if I am not on title?
In this case the husband or the wife has the house in their name and wish to exclude the other party from the house by changing the locks and seeking to exclude them. This situation is more difficult on the part of the person who is not on title (and is seeking to be excluded). The person on title has the “legal” right to exclusively occupy as owner of that property.
It may be that the other person has a “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or exclusive occupation of that site.
The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses in these circumstances. Please see factors identified above for consideration the Courts will make in deciding these matters.
What if my partner stops paying the mortgage?
We are often asked whether or not this permits the innocent party to kick them out of the home or alternatively to get an order forcing them to pay. Again the Courts will consider a holistic approach to the evidence as to the ability of one party to contribute to the joint debts and liabilities of the marriage.
In any event the bank is a independent third party and, in the normal form of mortgage, both parties have a joint and several obligation to pay the mortgage payments. In the event that one party needs to assume all of the parties until a final determination by the Courts, these additional contributions should be “added back” in any final accounting of the matrimonial property and financial resources of the parties to the relationship.
Family Law Court grants wife interim costs to help cover her $10.5 million in divorce legal fees
When separating it is often the husband who moves out and the wife stays in the matrimonial home. In many cases the husband has the higher income plus access to financial resources including the ability to borrow money. Often the wife has limited access to cash and has the added time burden of caring for children. This financial disparity and inequality becomes more significant when legal fees for a divorce are considered. There can often be a significant length of time between separating and a final division of assets. In this case it was over four years.
A recent full Family Court decision in September 2009 granted a wife interim costs for her divorce fees. This “interim” or stopgap decision gave the wife access to joint property before the final decision on the separation of their assets. The case was Strahan & Strahan (Interim property orders) [2009] FamCAFC 166 (14 September 2009). The Family Court restated the test by which a party could apply for an “interim” property order. The order was to provide funds to meet her ongoing legal costs of the proceedings in circumstances where she did not have funds required to pay these costs.
The Court confirmed that the most important consideration is the interests of justice in determining whether it is appropriate to exercise the power. The Court has a wide and unfettered discretion to make an order of this nature.
This divorce case involved an enormous matrimonial pool. There was a dispute as to exactly how large the asset pool was but the range of estimates was $80 million to “hundreds of millions”. The wife had spent approximately $10.5 million in legal costs since the commencement of litigation in February 2005.
On any examination of the divorce case there were enormous commercial and factual complexities. There were substantial accounting and forensic investigations to be conducted. There were allegations of non-disclosure and deficiency in discovery and production of documents by the parties. The trial judge was satisfied that the wife needed funds to meet ongoing legal costs of the proceedings and that she did not have funds to pay those costs.
Additional findings were important that:
• The husband was able to pay his legal costs and expenses.
• The husband was in the position of considerable financial strength.
• If the interim order sought by the wife was made there was no issue that the remaining property would be more than sufficient to meet the claims of the parties when a final order was made.
A Russian Bride's Binding Financial Agreement turns out not to be binding
The Facts around the Binding Financial Agreement
The husband is living on the north coast of New South Wales Australia. He developed a relationship with a lady in Russia. He traveled to Russia, married her and brought her back to Australia as his wife. The relationship was unstable. The husband was the wife’s only sponsor and the relationship was the sole basis for the wife to be able to stay in Australia.
Upon return from Russia, the parties entered into a Binding Financial Agreement.. No copy was provided to the wife. The agreement was unfavourable to the wife and significantly varied entitlements that would otherwise be apportioned to her under the Australian Family Law Act.
After a turbulent 4 year marriage the wife separated from the Husband.
Action through Federal Magistrates Court
The Wife applied to the Federal Magistrates Court of Australia and sought to have the Financial Agreement signed by the Husband and herself set aside. She maintained that the Financial Agreement was signed in circumstances in which she was under physical, mental and emotional pressures from the husband, notwithstanding that she had obtained independent legal advice prior to entering the agreement which had said there was almost no advantage to her to sign the agreement.
A copy of the Financial Agreement was not provided to the Wife but was kept in the “paperwork” at the house in which the Husband and Wife abided.
The Results / Decision
Federal Magistrate considered that the husband’s actions constituted duress and that this duress was such a level as to be unconscionable conduct and a basis, under the Family Law Act to set the agreement aside.
Furthermore there was a breach of section 90G(1)(e) noting that this section as a copy of the financial agreement had NOT been provided to the wife.
Having regard to the marked disparity of their financial positions and the fact that the wife was wholly successful in her application, the court ordered that the husband pay the applicant wife’s legal costs of $8,500 within 35 days of the judgment.
There were multiple grounds upon which this agreement was set aside. One of the basis was that the Wife had not been provided with a cop y of the Financial Agreement in contravention of section 90G(1)(e) Family Law Act 1975. This section was repealed effective 4 January 2010. Accordingly if this decision had been made after that date the failure to provide a copy to the Wife would not have been a ground for setting aside the agree ment and the repeal of this provision is intended to be retrospective.
This judgment confirms that the Court will ensure that the manner in which an agreement is signed and behaviours of the respective parties does not offend the general principles of “equity”. The Court will punish conduct which amounts to improper and inappropriate pressure from one party to the other and will consider this behaviour to constitute sufficient basis to set aside the agreement.
Does a Deed of Enduring Guardianship allow a hospital to stop medical treatment even if it is keeping a patient alive?
The case of Hunter and New England Area Health Service v A [2009] NSWSC 761 in 2009 raised this very important question. A Deed of Enduring Guardianship is often seen as a Living Will. It is similar in many ways to the more common Enduring Power of Attorney. A Deed of Enduring Guardianship, Living Will and Enduring Power of Attorney are legal documents with the intention of making clear your intentions in situations where you are not capable to represent yourself.
Note: The patient's name has been suppressed to maintain his confidentiality. He is referred to as Mr A.
The Facts behind the Deed of Enduring Guardianship
Mr A was admitted to the emergency department of Hospital of the Hunter New England Health Service on 1 July 2009 suffering from septic shock and respiratory failure and showing decreased level of consciousness. Mr A was transferred to the intensive care unit however his condition deteriorated. Mr A developed renal failure.
By 14 July 2009 Mr A was kept alive by a mechanical ventilation and kidney dialysis. On or about the 14th of July 2009 the Hospital became aware of a document prepared by Mr A approximately a year earlier indicating that he would refuse dialysis. Accordingly the Hospital filed an application in the Supreme Court of NSW seeking a declaration as to the validity of this document as an “Advanced Care Directive” given by Mr A and whether or not it would be justified in complying with Mr A’s wishes as expressed in that document.
- Medical opinion was that the withdrawal of dialysis would hasten Mr A’s death.
- Mr A was a Jehovah’s witness and had properly executed a deed of Enduring Guardian in which he nominated other people to be his Guardians and the Deed specifically refused the consent in respect of the donation or transfusion of blood. This Deed did not deal with the issue of dialysis. However, Mr A had on another instance completed a “worksheet” in which he had selected a multiple choice option of “I refuse” in relation to dialysis. It was the evidence of a friend that this document reflected Mr A’s wishes and that that view had not changed at any material time thereafter.
Issues of State's Interest versus Individual's Interests
Justice McDougall J. in the Supreme Court recognised that in this area there were two relevant but conflicting interests namely:
a) The competent adults right of autonomy and self determination : the right to control his or her own body; and
b) The interest of the State in protecting and preserving the lives and health of its citizens.
After discussing other cases and legal authorities his Honor said, At paragraph 17:
It is in general clear that, whenever there’s a conflict
between a capable adult’s exercise of the right of determination
and the State’s interest in preserving life,
the interest of the individual must prevail.
Mental capacity to make a Deed of Enduring Guardianship
His Honor also found that there was a presumption of capacity of an adult to consent or to refuse medical treatment unless that presumption is rebutted. His Honor observed that as a question of fact capacity can vary and assessing whether or not a person has the capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision.
Justice McDougall quoted with authority extracts from an earlier case of Re MB noting that a person suffers from an impairment or disturbance of mental functioning which will render that person incapable of making a decision if:
a) That person is unable to comprehend and retain the information which is material to this decision, in particular of the consequences of the decision; or
b) The person is unable to use and weigh the information that is part of the process of making the decision.
When Consent is not Consent
An apparent consent is also noted to potentially ineffective in a number of circumstances such as:
- a person being legally incapable of providing consent; or
- The consent being obtained by undue influence; or
- The consent being ambiguous or uncertain; or
- The consent being limited and not cover the particular circumstances or issue.
Justice McDougall acknowledged the “emergency principle” whereby a medical treatment provider may lawfully treat a patient in accordance with that person’s clinical judgment of what is in the patient’s best interest. Justice McDougall adopted earlier authorities in noting that this may apply providing two conditions are met:
a) That there must be “a necessity to act when it is not practical to communicate with the assisted person”; (“or some other person authorized to give consent on behalf of the assisted person”)
b) The action taken must be such as a reasonable person would in all the circumstances, acting in the best interest of the assisted person.
Conclusion - permission to stop dialysis
In applying these principles Justice McDougall determined that based on medical evidence the direction and instruction provided by Mr A approximately one year prior to his admission to the Hospital was done at a time when he was perfectly capable of making up his own mind and the document in evidence in the Court represented his considered views.
Accordingly the Judge made declarations permitting the Hospital to withdraw dialysis while acknowledging this would cause to hasten Mr A’s death.
This is quite an important decision made in intense and stressful circumstances. The Court must weigh up the patient’s ability to provide their “real” consent. Invasive medical treatment in the absence of consent will constitute assault. The Judge was at pains to point out that this was not a “right to die” decision. There was no decision or provision of any treatment or medicine that would “speed up” the death of the concerned person. The consolidation and description of the relevant principles in this judgment will be a very useful guide for all medical service providers (and their lawyers). If there is any doubt as to whether or not an individual has provided their consent the hospital should make an urgent application to the court seeking appropriate declarations.
The Judgment also affirms and recognizes the legal effectiveness of a properly drafted Deed of Enduring Guardianship. You can make decisions for yourself in advance in to provide for circumstances of when you are not capable of making those decisions for yourself.
The Principles of Medical Treatment, Consent and Deed of Enduring Guardianship
A very helpful restatement of The Principles by Justice McDOUGALL at paragraph 40 of Hunter and New England Area Health Service v A [2009] NSWSC 761:
1) except in the case of an emergency where it is not practicable to obtain consent (see at (5) below), it is at common law a battery to administer medical treatment to a person without the person’s consent. There may be a qualification if the treatment is necessary to save the life of a viable unborn child.
2) Consent may be express or, in some cases, implied; and whether a person consents to medical treatment is a question of fact in each case.
3) Consent to medical treatment may be given:
- by the person concerned, if that person is a capable adult;
- by the person’s guardian (under an instrument of appointment of enduring guardian, if in effect; or by a guardian appointed by the Guardianship Tribunal or a court);
- by the spouse of the person, if the relationship between the person and the spouse is close and continuing and the spouse is not under guardianship;
- by a person who has the care of the person; or
- by a close friend or relative of the person.
4) At common law, next of kin cannot give consent on behalf of the person. However, if they fall into one or other of the categories just listed (and of course they would fall into at least the last) they may do so under the Guardianship Act.
5) Emergency medical treatment that is reasonably necessary in the particular case may be administered to a person without the person’s consent if the person’s condition is such that it is not possible to obtain his or her consent, and it is not practicable to obtain the consent of someone else authorised to give it, and if the person has not signified that he or she does not wish the treatment, or treatment of that kind, to be carried out.
6) A person may make an “advance care directive”: a statement that the person does not wish to receive medical treatment, or medical treatment of specified kinds. If an advance care directive is made by a capable adult, and is clear and unambiguous, and extends to the situation at hand, it must be respected. It would be a battery to administer medical treatment to the person of a kind prohibited by the advance care directive. Again, there may be a qualification if the treatment is necessary to save the life of a viable unborn child.
7) There is a presumption that an adult is capable of deciding whether to consent to or to refuse medical treatment. However, the presumption is rebuttable. In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.
8) If there is genuine and reasonable doubt as to the validity of an advance care directive, or as to whether it applies in the situation at hand, a hospital or medical practitioner should apply promptly to the court for its aid. The hospital or medical practitioner is justified in acting in accordance with the court’s determination as to the validity and operation of the advance care directive.
9) Where there is genuine and reasonable doubt as to the validity or operation of an advance care directive, and the hospital or medical practitioner applies promptly to the court for relief, the hospital or practitioner is justified, by the emergency principle, in administering the treatment in question until the court gives its decision.
10) It is not necessary, for there to be a valid advance care directive, that the person giving it should have been informed of the consequences of deciding, in advance, to refuse specified kinds of medical treatment. Nor does it matter that the person’s decision is based on religious, social or moral grounds rather than upon (for example) some balancing of risk and benefit. Indeed, it does not matter if the decision seems to be unsupported by any discernible reason, as long as it was made voluntarily, and in the absence of any vitiating factor such as misrepresentation, by a capable adult.
11) What appears to be a valid consent given by a capable adult may be ineffective if it does not represent the independent exercise of persons volition: if, by some means, the person’s will has been overborne or the decision is the result of undue influence, or of some other vitiating circumstance.
Common miss-spellings: power of atterney, power of atterny, enduring power of attourney, enduring power of attorny
A couple in a de-facto relationship were seeking to make an "interim" agreement for spousal maintenance pending final discussions and negotiations in respect of a property division.
The Solution
Streeterlaw were retained on an urgent basis in May 2009 to draft a binding financial agreement for a defacto couple under the new provisions of the Family Law Act which became effective 1 March 2009.
The parties to the agreement were proposing to be traveling overseas for extended periods of time in the near future. Accordingly the proper drafting and "capture" of the agreement they had reached between themselves within a legally enforceable form of a binding financial agreement was required.
The Result
Streeterlaw were able to take detailed and extensive instructions, draft the deed and return it to the parties overnight for their execution which, after final approval, was executed by both parties.
Testimony - Mark Streeter Sydney Lawyer
"We really appreciated your urgent attention to this urgent work. My friends can’t believe that you are able to turn it around in such a quick time frame. My ex partner agreed that you had "captured" the agreement and was able to sign the agreement the next day. Thank you very much for your assistance. I can now go on extended leave with my mind at rest! I already have another three of my friends who have asked me for your name so that they can retain you as well!”
Peta*
Note
* An alias to preserve confidentiality and privacy. The Family Law Act provides stiff penalties to any person who discloses the names or identities of parties in family court proceedings or who publishes sufficient information to allow for the identification of these individuals. Accordingly many of the case studies and profiles are of a very general nature as a number of the distinguishing facts have been removed to preserve the anonymity of the parties.
From 1975 the Divorce Law in Australia has stipulated only one ground for a Decree of Dissolution on Marriage – i.e. that the marriage has broken down irretrievably [s48(1) Family Law Act FLA].
The sole evidence for establishing the breakdown is that the parties to the marriage have separated and continue to be separated for a continuous period of 12 months prior to the filing of the Application for Divorce [s48(2) FLA].
The jurisdiction of the courts exercising powers under the Family Law Act is enlivened if either of the parties to the marriage can establish that they are:-
1) An Australian Citizen; or
2) Ordinarily resident in Australia; or
3) Present in Australia
In addition to the Application for Divorce, it is necessary to file the Marriage Certificate with the Court. If the marriage occurred overseas a copy of the overseas Marriage Certificate will need to be evidenced before the court. If it is a foreign language, a certified translation will be required.
The question of whether or not the parties have “separated” for 12 months is a question of fact. The onus is on the applicant to demonstrate, on the balance of probabilities, that the essential facts supporting the application have been demonstrated before the Court.
An Application for a divorce order cannot be filed within 2 years after the date of marriage unless a certificate of a family counsellor or consultant stating that the parties of the marriage have considered reconciliation with the assistance of that person.
If there are children of the marriage under the age of 18 years, the Court will not make an order it is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of the children [55A(1)(b)(i) FLA]. If the Court has doubts as to the adequacies of the arrangements for the children it may adjourn the Application and order that a family consultant may prepare a report regarding the arrangements relating to the children.
Attempt to reduce Family Business profit backfires
Fraud may occur in any jurisdiction and unfortunately the area of Family Law is no exception.
The Situation
A family company was controlled by one party in a marriage separation.
The company engaged in a complicated arrangement with a foreign company in Asia. The company bought services from this foreign company at inflated prices, with the aim of decreasing the profitability of the domestic company. This consequentially reduced the value for the purposes of the Family Law proceeding and removed 'profits' offshore.
The Solution and Result
Streeterlaw made an application for a freezing order (also called a Mareva Order) which prevented further transactions and obtained orders for an investigative accountant to audit the true value of the company.
Note
The Family Law Act provides stiff penalties to any person who discloses the names or identities of parties in family court proceedings or who publishes sufficient information to allow for the identification of these individuals. Accordingly many of the case studies and profiles are of a very general nature as a number of the distinguishing facts have been removed to preserve the anonymity of the parties.
Family Court takes the Compliance of Orders seriously
On January 10th, 2006, following their divorce, Mr Rand + Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property. On June 25th, 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia” .... potentially for the term of his natural life!
Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and didn’t travel outside Sydney.
Three years later on the 20th of April 2010, Mr Rand’s appeal was presented to the Full Court of the Family Court. Finally, on the 3rd of September 2010, judgement was delivered in favour of Mr Rand ensuring that the convictions for Contempt of Orders were overturned.
Interestingly, the reason that the conviction was overturned was that the Full Court found that the original order given on January 6th, 2006 was not sufficiently clear and was therefore too ambiguous to find a breach by way of contempt of the Order.
Whilst we agree that the current judgement rights a wrong, Mr Rand will not receive any compensation for the limitations placed upon his liberty for the past 3 years and to this extent, the delay has prejudiced his personal and financial interests.
This is a strong reminder the Family Court takes Compliance with Orders in relation to children and property extremely seriously.
The need for full and frank disclosure by the courts often makes divorcing couples nervous. A common question is "Why do I have to give all my financial documents up to my ex-partner? I’ve been told I’ve got to get my tax returns and my bank account statements and give them to the other side!"
The reason behind this requirement is referred to as Full & Frank Disclosure. Family Law Dispute Resolution seeks to resolve disputes before they get expensive, adversarial and litigious. The Family Law Rules actually require parties to engage in an exchange of information, including finances, before they start proceedings in the Court.
The parties must make a genuine attempt to resolve the dispute before starting a case. Accordingly, in property and financial cases this will require the exchange of financial and taxation records, details of income, liabilities and any businesses, companies or trusts. The more complex the financial affairs are of the parties the more extensive these procedures will be.
A dispute may escalate if the parties do not trust one another and in the circumstances “assume” the worst. These worst case assumptions built upon worst case assumptions can make your negotiations very difficult. That's why the philosophy, and justification, behind the implementation of these rules is to eliminate at an early stage as many of the uncertainties regarding financial matters as possible.
Yes it may seem hard to hand over documents but doing so actually reduces the time spent and therefore your legal costs.
Call me to arrange an appointment to work out your options.
Be Prepared when Appearing before the Guardianship Tribunal
The Guardianship Tribunal serves an important role. These 11 points will help prepare you. There are things you need to DO and other things you should NOT do.
1. READ THE HEARING NOTICE
1.1 The Tribunal sits most often at 2a Rowntree Street, Balmain. However, the Guardianship Tribunal may also travel and hold temporary sitting rooms in hotels or conference rooms around New South Wales depending on the needs and location of the person who is the subject of the Application.
2. DO NOT FORGET FIRST PRINCIPLES
2.1 Section 4 of the Guardianship Act 1987 sets out the principles under which the Guardianship Tribunal operates and makes decisions. These principles are as follows:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
2.2 Every submission and piece of evidence should be made through a filter which considers these principles. Overall, and before all else, the Tribunal is a jurisdiction which is concerned about the “best interests” of the person who is the subject of the Application. It is uninterested in the personal private interests of a particular party to the Application except in so far as it relates to and is connected with the interests of the person who is the subject of the Application.
3. JURISDICTION
3.1 Remember what Application it is that you are making. Is it one about Financial Management or Guardianship? Or is it a review of an existing Power of Attorney under the Power of Attorney Act 2003? There are different questions to be asked (and answered) depending on the type of Application. Read the Guardianship Act 1987 and Power of Attorney Act 2003!
4. PRACTICE NOTES
4.1 As a Tribunal that most practitioners have little practical experience of appearing in, it is important that each practitioner potentially advising their clients or are seeking to appear should have regard to the conventions and manner in which the Tribunal conduct itself from a practical Hearing matter. Read the Practice Notes. They’re available on the Guardianship website at www.gt.nsw.gov.au.
5 APPEARANCE
5.1 There is no right of appearance by legal practitioners in this jurisdiction! Appearance as an advocate for a party who is a participant in this jurisdiction is by way of leave only. There is no inherent right for one party to be represented and accordingly make submissions.
5.2 Have regard to section 58 which sets out the terms under which a Guardianship Tribunal may permit legal representation of parties involved in an application before the Guardianship Tribunal.
6 JURISDICTION
6.1 Remember the jurisdiction of the Guardianship Tribunal is very narrow. It has quite discrete questions and powers under the Guardianship Act 1987 and the Power of Attorney Act 2003.
6.2 It cannot deal with concurrent issues involving Corporations Act or “equity”. If there are intractably intertwined legal and factual issues which require a judicial determination under legislation or in law that are outside of the jurisdiction of the Guardianship Tribunal – consider whether or not this is the appropriate jurisdiction for the dispute resolution. The Supreme Court has concurrent jurisdiction under the “protective division” of the Supreme Court.
7. WHAT IS A SEPARATE REPRESENTATIVE AND WHAT DO THEY DO?
7.1 Separate Representative is appointed by the Tribunal if the Tribunal has concerns that the interests of the person the subject of the Application should have an independent advocate to lead evidence and make submissions on behalf of the Concerned Person before the Tribunal.
7.2 The principles and guidelines for Separate Representatives are found in PVP and are as follows:
(a) Act as an independent and unfettered way in the best interest of the Concerned Person.
(b) Act impartially but if thought appropriate, make submissions suggesting the adoption of a particular course of action if such a course is in the best interest of the Concerned Person.
(c) Inform the court of the wishes of the Concerned Person.
(d) Arrange for the collation of expert evidence and otherwise ensure that all relevant evidence is before the court.
(e) Test by cross examination where appropriate the evidence of the parties and their witnesses.
(f) Ensure that the views and the attitudes brought to bear on the issues are drawn from the evidence and not from a personal view or opinion of the case.
(g) Minimise the trauma to the Concerned Person associated with the proceedings.
(h) Facilitate an agreed resolution to the proceedings.
8. RULES OF EVIDENCE
8.1 The Tribunal is not limited by the rules of evidence. Evidence can be adduced in forms that would not otherwise be admissible in a Court.
9. THE INQUISITION?
9.1 The nature of the Tribunal, and the manner in which the Hearings are conducted are very much by way of an “inquiry”. The members of the Tribunal actively intervene and direct questions and seek to elicit evidence addressing their particular concerns. The “control” by a party or their legal representatives over the Hearing process is much more limited than in a conventional Court room environment.
10. THE BENCH
10.1 The Tribunal will conventionally (for non-procedural matters) be constituted by three separate individuals, who collectively are the Tribunal in relation to an Application. The Tribunal members will each have a particular area of expertise but generally their three roles are as follows:
(a) A Presiding Legal Member
(b) A Community Member
(c) A Professional Member (Doctor or other suitably qualified medically qualified person)
11. INVESTIGATION OFFICER
11.1 Each application before the Tribunal will be “case managed” by an Investigation Officer. The Investigation Officer’s role is to ensure the relevant information and material is available to the Tribunal for its deliberations and considerations.
11.2 If necessary, the Investigation Officer will contact medical service providers and seek to elicit medical reports and other documents relevant to the decision of the Tribunal.
Imagine being pregnant, facing deportation and being given a Binding Financial Agreement by your fiance five days before your wedding and told to sign or the wedding is off.
The Situation Blackmore and Webber [2009] FMCA FAM 154
The couple entered into a Binding Financial Agreement (under Section 90G of the Family Law Act 1975) on 11 November 2004 just days before being married on 14 November 2004.
This judgment arose following an application by the wife to set aside a binding financial agreement on the following grounds:
a) There was a failure to comply with the formal requirements of section 90G
b) That the agreement was obtained by fraud under 90K (1)(a) including non-disclosure of a material matter
c) That pursuant section 90K(1)(b) the agreement was voidable or unenforceable in that it was obtained under duress
d) That pursuant to 90K(1)(e) the husband engaged in conduct that was in all the circumstances unconscionable
The Decision about the Binding Financial Agreement
The Court agreed with the wife that the agreement should be set aside on the basis of the husband’s “fraud” due to the non-disclosure (in circumstances where he had a positive obligation to disclose) of the value of the husband’s pension. Although not required to determine the ultimate question the court also would have found that there was duress where:
a) The binding agreement was first produced to the wife 5 days before their wedding
b) The husband told the wife the wedding would be off if she did not sign the agreement
c) The wife was four to five months pregnant with the husband’s child
d) There wife’s visa was due to expire had the wedding not proceeded the Visa would have expired and the wife would have to leave Australia
The Court also concluded that it would have been satisfied that the husband engaged in conduct that put the wife at a special disability.
The Court found that at the time of signing the Binding Financial Agreement the wife’s command of the English language was limited, that she was pregnant, that she lacked close family support and faced possible expulsion for the country if she did not marry.
Call me for an appointment to discuss any Binding Financial Agreements you may have, or wish to create.
Why can't children use the same lawyer as their parents?
Unfortunately parents often take adversarial and diametrically opposed positions in respect of what is in the “best interests” of children in Family Law Parenting Cases. As a result children are required to have separate legal representation in the Courts.
Accordingly it is practice for the Court to appoint an “ICL” i.e an Independent Children’s Lawyer to represent the Children’s best interests in any contested hearing before the Court.
The Independent Children’s Lawyer operates as a “Separate Representative” to ensure that submissions are made and evidence brought before the Court in order that a determination may be made in accordance with law and the principles of the Family Law Act. The overriding responsibility of the Separate Representative is to ensure evidence is presented and submissions made as to what is in the best interests of the children.
Guidelines for the role of the Separate Representative or Independent Children’s Lawyer were set out in a Full Court Family Court decision of P and P in 1995. They are as follows:
"The separate representative ought:-
1. Act in an independent and unfettered way in the best interests of the child.
2. Act impartially, but if thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action if he or she considers that the adoption of such a course is in the best interests of the child.
3. Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise but is bound to bring the child's expressed wishes to the attention of the Court.
4. Arrange for the collation of expert evidence and otherwise ensure that all evidence relevant to the welfare of the child is before the Court.
5. Test by cross-examination where appropriate the evidence of the parties and their witnesses.
6. Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case.
7. Minimise the trauma to the child associated with the proceedings.
8. Facilitate an agreed resolution to the proceedings."
Comment from Mark Streeter - Sydney Family Law Lawyer
The Independent Children’s Lawyer is not “bound” to take an adversarial or contradictory role and may either support one parent’s application over the other or alternatively submit a completely new third version of proposed orders in respect of children.
The Independent Children’s Lawyer is an incredibly powerful and influential role in parenting matters in the Family Courts. It is an important safeguard to ensure a “neutral” party is presenting as objectively and as “disinterested” submissions in the interests of the child (or children) as is possible in the circumstances.
A financial, or prenuptial agreement, had been entered into by a couple. The agreement did not expressly state that both parties had received independent legal advice. As it is a requirement of Financial Agreements that independent legal and financial advice been received the agreement was found to be not binding.
The changes to protect Prenuptial Agreements
Effective 4 January 2010, the Federal Justice System Amendment (Efficiency Measures) Act (No. 1) 2009 (No. 122, 2009) - Schedule 5 amended the Family Law Act 1975 (Cth) and significantly modified section 90G. Section 90G(1)(b) and (c) were repealed and new sections inserted. The effect of the change is to overcome the strict interpretation of the previous version of the legislation as interpreted by the Full Court of the Family Court in the above case of Black v Black [2008] FamCAFC 7.
These recent changes are designed to overcome this decision.
The amended legislation will enable legal practitioners to provide signed statements that they gave independent legal advice either before or after the spouse party signed the financial agreement, and provide copies of the statements to be provided either to the other party or to the legal practitioner of the other party.
The changes also provides the Court with the discretion to declare a Financial and Termination agreement to be binding, notwithstanding that it fails to meet the procedural requirements in relation to the making of the agreement providing the Court is satisfied that it would be unjust in all the circumstances if the agreement did not bind the parties.
The impact of the legislation is retrospective and covers all Financial Agreements entered into from 27 January 2000.
Is a doctor to be held responsible if they fail to diagnose something?
The case of TABET V GETT [2010] in the High Court of Australia (12 APRIL 2010) investigated this.
Facts behind the case
On 11 January 1991, the appellant was admitted to the Royal Alexandra Hospital for Children with symptoms of headaches, vomiting and nausea after suffering from the chickenpox. She was examined by the paediatrician respondent and provisionally diagnosed as suffering from chickenpox, meningitis or encephalitis.
On 14 January 1991, the appellant suffered a seizure, and was diagnosed with a brain tumour following a CT scan and EEG. The appellant suffered irreversible brain damage after undergoing treatment and an operation to remove the tumour.
The appellant argued that the respondent breached his duty of care and skill by causing or contributing to her injury. The appellant alternatively argued that the respondent’s breach of duty of care and skill led to “the loss of an opportunity to avoid injury, loss and damage”. The appellant submitted that if the respondent had performed the CT scan earlier, she would have had a better medical outcome.
High Court Decison
The High Court unanimously dismissed the appeal.
Legal Question about Doctor's Negligence
Does the common law of negligence in Australia recognise a less than even chance of avoiding an adverse health outcome as an interest of value to a patient, the loss of which by reason of a doctor’s negligence, can be compensated as damage suffered by that patient? [Heydon J, para 71]
Threshold test proving medical negligence
KIEFEL J:
(a) The three elements of a cause of action in medical negligence, necessary to be established in order to recover compensation, are:
(i) a duty owed by the medical practitioner to the plaintiff to avoid harm which is reasonably foreseeable,
(ii) a breach of that duty and
(iii) damage which results from that breach. [para 108]
Causation & analysis of loss of opportunity
The majority judgment of HAYNE & BELL JJ set out the law of relating to the ‘loss of chance’ as follows:
(a) The Doctor should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was. [para 68]
(b) It need only be observed tha the language of loss of chance should not be permitted to obscure the need to identify whether a plaintiff has proved that the defendant’s negligence was more probable than not a cause of damage (in the sense of detrimental difference). The language of possibilities (language that underlies the notion of loss of chance) should not be permitted to obscure the need to consider whether the possible adverse outcome has in fact come home, or will more probably than not do so. [para 69]
Justice KIEFEL J added his further comments that:
(a) Properly analysed, what is involved in the chance referred to in this case is the possibility, to put it at its highest, that no brain damage would occur or that it would not be so severe. They are the “better medical outcomes” involved in the chance. Expressing what is said to be the loss or damage as a “chance” of a better outcome recognises that what is involved are mere possibilities and that the general standard of proof cannot be met. Thus the appellant could only succeed if the standard of proof is lower than the law presently requires. [para 143]
(b) The requirement of causation is not overcome by redefining the mere possibility, that such damage as did occur might not eventuate, as a chance and then saying that it is lost when the damage actually occurs. Such a claim could only succeed if the standard of proof were lowered, which would require a fundamental change to the law of negligence. [para 152]
The NSW Attorney General launched the “NSW Relationships Register” on 1 July 2010. This Register is managed by the NSW Registry of Births, Deaths & Marriages and allows unmarried couples in a committed, exclusive relationship to formally prove that they are in a committed or de facto relationship.
The Register is open for either unmarried heterosexual or same sex couples. Registrants will provided with a document which helps to prove their relationship avoiding the burden of constantly having to supply government agencies voluminous paperwork as evidence of their relationship.
Man pays child support for six years before DNA reveals he is not the father
An expensive Child Support case shows it is not always worth recovering funds even if they are overpaid or incorrectly paid.
The facts of Forsythe & Latimer & Anor [2010] FMCAfam 478 (8 June 2010)
A recent decision in the Federal Magistrate’s Court (8 June 2010) concerned an application by the Child Support payer who had made payments over a number of years unaware that he was not the father of the child at the time that he made payments of child support.
The recipient of the funds was in strained financial circumstances. Although the father was determined not to be the father so for the purposes of this discussion he will be called the “payer”.
The mother commenced a relationship with the payer in November 1997 which continued to June 1998. They did not live together but they had a relationship which included sexual intercourse.
On an occasion in December 1997 the mother had a “one night stand” following an event at a pub. She does not recall this man’s name nor have any of his contact details. The child was born in late 1998 but the payer’s name was not recorded on his birth certificate until 11 January 2000.
After making private payments of child support, the payer then commenced paying through the Child Support Agency in October 2002. After suspicions were raised by the payer’s sister as to the paternity of the child, the payer requested the mother permit a DNA test in or about March 2008. Due to delays from the testing agency a conclusive report was not produced until 22 April 2009 which excluded the payer as being the biological father of the child. After some delays the payer commenced proceedings in the Federal Magistrate’s Court seeking a declaration under the Child Support (Assessment) Act and seeking a repayment order under that Act.
The entitlement of a party to “be repaid” is up to the Court who has an unfettered discretion as to whether or not to make the order in accordance with the criteria specified in Section 143(3) of the Child Support (Assessment) Act. The relevant criteria is as follows:
(a) whether the payee or the payer knew or suspected, or should reasonably have known or suspected, that the payer was not a parent of the child;
(b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
(c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not a parent of the child;
(d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is a parent of the child;
(e) the relationship between the payer and the child;
(f) the financial circumstances of the payee and the payer.
Comment from Mark Streeter Sydney Lawyer
Having regard to all the personal and particular circumstances of this case and the conduct of the parties, their financial circumstances and applying them to the criteria referred to above, the Federal Magistrate ruled that of the $39,090.57 claimed only $9,743.30 would be ordered to be paid and then made provision for these to paid by instalments over 18 months.
This was an extremely expensive case to run and this case involved 3 hearing days and written submissions. There is no way that costs would not have exceeded the sum recovered and accordingly the commerciality of recovery proceedings in this jurisdiction must be carefully weighed up!
Prenuptial agreements have become more common and accepted in our society. yet many couples intending to marry feel they don't need a prenup. This post covers some of the Who, When and Why of arranging a Prenuptial Agreement.
Yes a prenup is not for everyone, but they are appropriate for a wide variety of people and you may find it applies to your personal situation. Importantly a pre-nuptial agreement is a legally enforceable contract. It does require each party to receive independent legal advice. It is not a quick list of who owns what.
Who should have a prenuptial agreement?
A prenuptial agreement is not necessary for everybody, however there are some personal and family situations where it is a very wise decision. In fact for many couple it can raise and deal with important concerns. it can also put into perspective or reduce anxiety related to "what if" situations and the unknown.
Common reasons for considering a prenuptial agreement include:
Owning a successful business
You are wealthy
You have children from a previous marriage
If you have elderly parents
If you anticipate a sizeable inheritance
If you are in a professional school
If one has sizeable debt
If you are pursuing a lucrative career
If you own stock, a home or retirement fund
Or if you want to avoid a costly divorce.
When should you consider a prenuptial agreement?
A marriage ceremony can be viewed as a contract where promises are made. In the same way, a prenuptial agreement is a contract where promises are made in the event of a marriage breakdown. The prenuptial agreement is best developed before the marriage, and is a legal process where both parties need time to join in discussion and come to agreement. It is best for both parties to have legal representation as the contract is drawn up, to ensure that the prenuptial agreement is enforceable.
It is a contract based on trust, where there is full disclosure and a clear understanding by both parties of the way things will be if the marriage does breakdown. The process does not need to involve conflict, but can provide a platform for open communication.
Why consider a prenuptial agreement?
Elderly parents, children from a previous marriage, assets and possessions can all be protected.
Fears of the unknown can be put to rest. Vulnerabilities and strengths are understood. A prenuptial agreement solves many serious problems before problems arise. A prenuptial is not an admission this relationship is likely to fail. Rather the discussion it generates can help unite a couple as they plan the future together.
On 1 March 2009 the previously state based de facto laws in New South Wales were transferred to the Federal jurisdiction. This has brought changes to defacto agreements (often referred to cohabitation agreements). Changes have been made to the Family Law Act 1975 (CTH) in respect of de facto property and financial matters in the Family Court of Australia and the Federal Magistrates Court. These changes included expanded definitions of “matrimonial causes”.
There are now six types of “financial agreements” also called “binding financial agreements” that can be drafted. The most commonly known is a prenuptial agreement or prenup.
1. Financial agreement in anticipation of marriage (ie prenuptial agreement).
2. Financial agreement made during a marriage – this may be during a marriage and before or after separation.
3. Financial agreement made after an order for divorce.
In respect of de facto relationships:
4. Financial agreement in anticipation of entering into a de facto relationship.
5. Financial agreement made during a de facto relationship.
6. Financial agreement made after the de facto relationship has ended.
There are slightly different requirements of the legislation for each type of financial agreement. As part of the “family law legislation” the requirements for de facto financial agreements must also comply with the obligation that each party provide full and frank disclosure to one another in respect of their financial interests and resources.
Call me for an appointment to create a prenuptial agreement that suits your situation.
Common miss-spellings or other terms:
Pre nup, prenuptual agreement, prenups, Binding Financial Agreements, Cohabitation agreement, prenuptial contract
Family Court takes the Compliance of Orders seriously
On January 10th, 2006, following their divorce, Mr Rand + Mrs Rand were given specific orders by the Family Court pertaining to the settlement of their property. On June 25th, 2007 Mr Rand was found guilty of Contempt of Orders and was to “be imprisoned until discharged by order of the Family Court of Australia” .... potentially for the term of his natural life!
Mr Rand appealed the conviction and the sentence was stayed providing that he entered into a bond and didn’t travel outside Sydney.
Three years later on the 20th of April 2010, Mr Rand’s appeal was presented to the Full Court of the Family Court. Finally, on the 3rd of September 2010, judgement was delivered in favour of Mr Rand ensuring that the convictions for Contempt of Orders were overturned.
Interestingly, the reason that the conviction was overturned was that the Full Court found that the original order given on January 6th, 2006 was not sufficiently clear and was therefore too ambiguous to find a breach by way of contempt of the Order.
Whilst we agree that the current judgement rights a wrong, Mr Rand will not receive any compensation for the limitations placed upon his liberty for the past 3 years and to this extent, the delay has prejudiced his personal and financial interests.
This is a strong reminder the Family Court takes Compliance with Orders in relation to children and property extremely seriously.
The elderly are one section of our society that have a particular vulnerability to financial exploitation. An elderly person can put into place legal documents such as an Enduring Power of Attorney and a Deed of Enduring Guardianship that will provide for the formal appointment of trusted individuals to perform the role of financial manager and guardian in times when they are unable to or are incapable of attending to these types of matters themselves.
If an attorney / guardian, appointed under a deed, fails to protect the best interest of a vulnerable person or there is no formal appointment documents and the informal arrangements are not working an “interested person” may make an application to the Supreme Court or the Guardianship Tribunal for the appointment of an independent financial manager and / or guardian.
From 1 July 2009, the NSW Trustee and Guardian Act 2009 came into effect and under this legislation a new organisation was created; The NSW Trustee and Guardian now performs the roles previously exercised separately by the Office of the Protective Commissioner (Financial Manager) and the NSW Public Trustee (Guardian).
Usually it is preferable that a relative or friend undertake these roles however in circumstances of gross family conflict an independent person may be preferred.
Protecting people from violence is a significant role of Australian laws. The protection of women and children from domestic violence is a topic often covered in the media. Sexual assault is another. A recent report is hoped to be a step forward in addressing inconsistencies or areas for improvement in our State and Federal laws. Many Family laws intersect or cross over with other laws which can create confusion.
The joint Australian Law Reform and New South Wales Law Reform Commissions delivered their final report to the Attorney General on 10 October 2010. The report was released to the public in November 2010.
This 1,500 page, 2 volume report sought to comprehensively review the various Federal and State Laws. It's objective was reducing violence in the community and particularly in relation to women and children.
This process is one of the ways in which changes to laws are made in Australia. This comprehensive review of the existing laws identifies weaknesses and areas of potential improvement and then made 186 recommendations for improvement.
Areas include confidentiality, rape, family dispute resolution, bail, trial process, homicide, breach of protection orders. For the full text of the report click here
Domestic family violence is a crime. What should you do and what you should take when separating?
Separation can occur by agreement or can occur as a consequence of one party arbitrarily denying the other party access to the primary residence. The law relating to occupation as “joint tenants” of a house can be complex with many unique and particular factual issues to be considered by a judge who is asked to rule on a dispute.
Often in separation there will be accusations of domestic violence, abuse or threats. Often it is violence against women but not always. Domestic family violence may be considered as criminal conduct. An application by one party against the other for an apprehended domestic violence order (ADVO) can prevent one party from approaching or entering the home.
Separately and in addition to right for a party to make an application for an ADVO a party may make an urgent application to a Court with Family Law jurisdiction for a “sole use and occupation order” which would be a short-term exclusion order that one party have exclusive occupancy of the home until a final property settlement or judgment of the court has been determined.
Family violence and domestic violence help
Family violence is any physical violence, threats, emotional and psychological abuse and includes damaging property. Violent behaviour is unlawful and in addition to protections and the family law, there may be protections under the criminal regime.
If you are the subject to, or a party to family violence, call the police – 000.
The police have the power to arrest the offender, search for and remove weapons. If the offender has a gun (or owns a gun) the police may remove it. The offender may be charged with a criminal offence and the police may apply for an apprehended domestic violence order on your behalf.
If the police do not make an application for a court order you may approach the duty Magistrate or the Registrar at your Local Court to assist you make an application.
As an adult you may apply for an order that protects you and/or your children from family violence. The first instance should be the Domestic Violence Liaison Officer at your Local Police station.
Are you the one leaving your house in separation?
If you are leaving your house, either planned or in circumstances of urgency such as domestic violence victim, be sure that you take the following:
personal documents - for example bank / cheque books, passports, marriage certificates
any items of sentimental value
things that you need for yourself and your children including change of clothing, school uniforms, school bags, books, toys, toiletries
If you are in personal danger from domestic abuse – remove yourself and ensure that you are physically and emotionally safe and those in your care are also removed from threats or risk of family violence.
Common misspellings: domestic voilence, domestic violance
A wife suspected that her husband was having an "affair" online.
The Solution
By use of lawful surveillance methods it was ascertained that it was much worse than this. The husband was viewing child pornography. The matter was reported to the police and urgent action taken in the Family Court to preserve and protect the child of the relationship.
Testimony - Mark Streeter Sydney Lawyer
I recently agreed on a property settlement with my spouse. During the preparation beforehand and negotiation during the mediation, Mark Streeter was practical and results-oriented. He avoided the emotional issues that would have distracted me from evaluating my options clearly, and did not influence me to agree to further unnecessary litigation. Mark was focused on the best outcome for me and my child. Instead of a long emotional argument battled out in family court, we came to an amicable settlement. Many other less ethical lawyers would have encouraged me to continue the unnecessary litigation so they can charge their clients more money. Mark was truly concerned about my interests. 002
Note
The Family Law Act provides stiff penalties to any person who discloses the names or identities of parties in family court proceedings or who publishes sufficient information to allow for the identification of these individuals. Accordingly many of the case studies and profiles are of a very general nature as a number of the distinguishing facts have been removed to preserve the anonymity of the parties.
Shared property gambled away may need to be repaid
An issue may arise as to a particular person’s conduct either during the marriage or after separation that disposes of matrimonial property. The Family Court is a Court of Equity i.e they will not permit a party to take an unfair advantage because of unilateral action for their own benefit without bringing these funds to account. This concept is often called “wastage”.
In determining whether or not a certain expenditure or disposal of asset is classified as “wastage” and attributed wholly to a particular party the Court considers the following questions (insert A/B and G/B criteria).
Examples - The most common example alleged to constitute “waste” in the context of Family Law property resolutions is gambling. Gambling in its own right is not necessarily wastage. It has been accepted by the Courts that for some, this is a form of entertainment and it is a question of degree to be assessed in every case on its own circumstances.
The Court has also found conduct which reckless, negligent or wanton and reduced or minimised the value of the assets should also be held to account.
If a finding has been made that quantifies a “wastage” amount, these figures will be “added back” into a notional pool of assets for consideration of division.
Comment from Mark Streeter Sydney Lawyer
One of the difficulties in preparing the case in wastage is it the innocent party’s “onus” at least at the first stage to prove on the balance of probabilities, that the other party has “wasted assets”.
This investigation, may involve quazi fraud investigation and detailed examination of betting accounts, electronic records, and may include the “reconstruction” of financial accounts. Accordingly the process is time-consuming and if it requires forensic accounting to verify the waste the investigation process will be be expensive to present this evidence in a form that is admissible before the Court.
When you separate who makes the decisions about your children?
As a parent you have responsibility for your child. When couples divorce or separate deciding who looks after the child is determined by what is in their best interest. Equal Shared Parental Responsibility is one arrangement in what is usually referred to as child custody..
Parental responsibility in relation to a child is defined by s61B of the Family Law Act 1975 as “all the duties, powers, responsibilities, and authorities which, by law, parents have in relation to children.”
Parents automatically have parental responsibility for their children from birth. Unless there is a parenting dispute resulting in Orders of the Court, each parent will continue to have equal shared parental responsibility for the child following separation or divorce.
Parental responsibility and making decisions with regard to the day to day conduct of the child’s life are often confused. It is usual for the parent who is caring for that child, at any given time, to be responsible for decisions with regard to the day to day welfare of that child. An order for shared parental responsibility, or child custody, does not mean that the other parent must be consulted on every minor issue in a child’s life.
Parental responsibility is a responsibility to make decisions in relation to the long term issues in a child’s life such as where the child lives, what medical treatment they will receive, educational issues such as where they will attend school, the nature and degree of religious upbringing, the child’s name, passports, and the child’s social conduct and interaction.
Significant changes were brought about with the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 in July 2006(“The Amendment Act”). The Amendment Act saw a shift in the focus of the Court from the rights of parents; toward the rights of children and the responsibility of parents.
The Court must now apply a “rebuttable presumption” contained in s61D of the Family Law Act that it is in the best interests of children and parents to have a shared parental responsibility. This cannot be confused with the additional consideration of equal time. The presumption for equal shared parental responsibility is rebutted in circumstances whether there are reasonable grounds to believe that a parent of a child (or a person who lives with the parent of that child) has engaged in:
a) abuse of that child; or
b) family violence.
The Court will not make an order for equal share parental responsibility if they exercise their discretion that making that order would be contrary to the child’s best interest.
Orders relating to parental responsibility may be made on an interim basis in matters of urgency but the Court must disregard such an interim order when considering a final order to avoid prejudice against the other parent.
Social scientific studies have demonstrated that in situations where there is a high level of conflict between the parents, where consultation on significant issues relating to the child would place the other party or the child at risk of harm, it may be considered appropriate to award sole parental responsibility of the child to one parent.
A surprise trip to the Philippines reveals more surprises for a husband.
A recent Family Court decision of 11 October 2010 considered the very technical and legal requirements of an legal application to declare a marriage null and void (MONTY & VILLAMONT). There are very few grounds by which the Family Court may declare a marriage void.
Section 23B of the Marriage Act 1961 provides a limited ground. The full text of this section 23B is available here. The ground applicable in this case 23B(1)(a) either of the parties is, at the time of the marriage, lawfully married to some other person.
In the case of MONTY & VILLAMONT, the husband married a lady of Filipino nationality in October 2007. The wife then returned to the Republic of the Philippines.
The husband traveled to the Philippines on a surprise visit in 2008. He discovered that the wife was in a relationship with another man with whom she had two children. The husband then conducted a search with a Republic of Philippines national statistics office which provided a document evidencing the wife’s marriage to another person in May 1995. With the assistance of the Australian Department of Immigration the husband confirmed that the wife was still married to the other person at the time of their marriage in October 2007.
The primary evidence in support of the application were documents including documents from a foreign jurisdiction; Nevertheless the Family Court was satisfied that at the time of the marriage the wife was lawfully married to another person and granted an order of nullity and made a declaration accordingly.
Comment from Mark Streeter Sydney Family Law Lawyer
A further complicating factor in this case was the husband’s inability to ‘serve’ the Application for nullity upon the wife. The Court rules require that documents filed in Court including an “Initiating Application” must be personally received by the other person. The Family Law Rules further provide for the means by which service can be “proved” to the satisfaction of the Court. Rule 7.18 of the Family Law Rules 2004 however provides the Court with the power to modify the requirements of the rules relating to service or alternatively to dispense with it altogether. In this case the whereabouts of the wife was unknown.
An old facebook entry indicated that the wife was potentially living in Canada. The husband did not have the financial resources to conduct searches in Canada and enquiries with the relatives of the wife in the Philippines had indicated that she was no longer living in the Philippines and by the time of the hearing the wife’s facebook profile had been removed.
Justice O’Reilly was satisfied that the steps taken by the husband to search and serve the wife were exhaustive and ordered that the service of the Initiating Application and affidavit filed in support be dispensed with.
There are times when Unsupervised Child Visitation will be denied
An issue often raised in disputed children’s cases is whether or not there is an “unacceptable risk of abuse” to the child if time the child spends with one of the parents is not supervised. This language comes from the High Court Decision M v M. In that respect it mirrors the language of the legislation Section 60CC(2)(b). Behaviours that have been found to constitute unacceptable risk include history of physical abuse, illicit drug or abuse of prescription medication, sexual abuse.
It must be demonstrated, on the facts and evidence before the Court that accumulatively and collectively there is an unacceptable risk abuse of the child to have unsupervised time with the specified parent or individual.
The Court starts with an acknowledgment and recognition that abuse of children (both sexual and physical) does occur in the community. The Courts however approach these allegations with a heightened vigilance on the basis that:
· Not all allegations of abuse are true.
· False allegations may be made by either parents acting in good faith or as a result of misperception of information.
· Sometimes (and hopefully rarely) parents deliberately fabricate allegations.
The Courts balance the risk of harm to the child having contact with the benefits of that contact. In each case the evidence is meticulously examined by the Court.
High Court of Australia overturns Family Court decision
Parenting order to work out what's best for a child in an interstate child custody battle
The long term effects of divorce on children can be significant. One of the most contentious issues is child custody. This is especially important when parents wish to live in different cities, states or even countries. Courts are now required to make decisions in the best interest of a CHILD rather than their parents. Equal access for parents may not be in the best interests of a child if it is not reasonably practical. This case highlights how to allow equal access a mother needed to live in a caravan in Mt Isa and rely on social security. This was not seen to be in the child's best interest.
This recent decision in the High Court considered new provisions inserted into the Family Law Act 1975 (Cth) in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) explains:
the best interests of children are met by ensuring that they have the benefit of having both their parents with a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.
Section 60CA requires that the Court must regard the best interests of the child as the paramount consideration when deciding to make the particular parenting order in relation to the child. Considerations necessarily taken into account by the Court in determining what is the child’s best interests are listed in Section 60CC.
Section 65D(1) provides that the Court may make a parenting order it thinks proper but subject to the provisions of Section 61DA and Section 65DAB.
In this recent court case The High Court considered Section 65DAA which provides that:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."
Section 65DAA(5) includes further items the Court must have regard to in deciding whether or not an order under Sub-Section(1) is “reasonably practicable”.
Appeal to the High Court over child custody parenting order
The High Court considered this appeal following a decision in the Federal Magistrate’s Court on 1 April 2008. The mother appealed the Federal Magistrate’s decision to the Full Family Court which dismissed her appeal by reasons for decision published 15 May 2009. Special appeal was granted to the wife to appeal the High Court with orders pronounced on 3 December 2009 but reasons published 3 March 2010.
The High Court overturned the decisions of the Full Court of the Family Court and that of the Federal Magistrate’s Court and remitted the matter for hearing “de novo” i.e. a complete re-hearing.
The facts: child custody between Mt Isa and Sydney
The parents lived in Sydney from 1993 to 2007. In January 2007 they moved to Mount Isa to facilitate the father gaining work experience as a graduate mechanical engineer. This was for an initial period for 2 years but by the time of the hearing in the Federal Magistrate’s Court and orders on 1 April 2008 it looked like the contract would be extended.
The child was born in August 2002. The parents separated in August 2007.
Following separation the mother returned to Sydney to live with her father with the child. Following the orders of the Federal Magistrate (which required the mother to live in Mt Isa to facilitate equal and shared parenting orders) the mother returned to Mt Isa.
The Parenting Orders made by the Federal Magistrate were that the child live with each parent on a ‘week about’ basis. The Federal Magistrate had to determine two difficult and contradictory applications. The first was that the mother live in Sydney with the child and the second was that the father live in Mt Isa and continue his work.
In considering the sections of 65DAA the High Court noted that the terms of this section are expressed in imperative terms. The Court noted that it only when both questions are answered in the affirmative that consideration can be given under paragraph (C) for the making of an order.
The High Court did not consider the Federal Magistrate had considered the circumstances of the parties, particularly the circumstances of the mother in determining whether equal time parenting was reasonably practical. The mother, in Mt Isa, was required to live in a caravan park and lived with child on alternate weeks. Rental accommodation was scarce in Mt Isa and the mother could not afford good quality accommodation and was forced to be supported on social security benefits.
In Sydney the mother had both part-time and full-time opportunities with her previous employer which also allowed flexible hours. In Mt Isa there was no reasonable casual or part-time employment opportunities for the mother. The disparity of the incomes between the mother and the father were not addressed in the decision by the Federal Magistrate.
The Family Consultant acknowledged that the mother was “definitely despondent”. The Federal Magistrate made a finding that her anguish and depression could be dealt with by counselling – but this was found not to be supported on the evidence.
The High Court found that in the absence of a finding that an equal and shared parenting was “reasonably practical” the Court could not proceed to Subsection 3 and make an order for a child to spend equal time with each parent.
Accordingly the High Court overruled the lower Court’s decisions and remitted the matter for a fresh hearing.
Comment from Mark Streeter - Sydney Family Law Lawyer
This is an important decision in that it is the highest Court of the land considering the 2006 amendments, particularly in respect of the increased focus on “equal and shared” or alternatively substantial and significant time with each parent.
Each Family Law case is specifically limited to its own particular facts, however this decision of the High Court provides useful guidance on the importance on strict interpretation of the Family Law Act and ensuring that factual findings are made at each stage in the process to support the necessary orders under the subsections of the Act.
Most parents want what is best for their child. If a child breaks their arm parents need no special permission to have it operated on and fixed. However consent to perform surgery on special medical conditions is not so easy. In a recent Family Law case [Sean and Russell (Special Medical Procedures)] the castration of two boys was presented to the Courts for a decision.
With headlines of “Judge Allows Parents to have Boys to be Castrated” Kim Arlington, journalist for the Sydney Morning Herald sensationally reports on a Family Court decision by Justice Murphy delivered 26 October 2010. The facts of this case are special, sad and serious and belie the sensationalist headlines.
In respect of 2 applications heard by the Court at the same time 2 young children known by the pseudonyms “Russell” (an 18 month year old boy) and “Sean” (a 3 ½ year old boy) had both been diagnosed as having Denys-Drash syndrome. It was the specialist medical advice received by parents of both these children that the gonads of the boys be removed for their own health and to prevent some of the effects of the Denys-Drash syndrome. It is thought that these two children are the only two people in Australia that suffer from this condition. The medical evidence was that the boys would develop of tumors (cancer) in their kidneys and their testes.
It was acknowledged that the removal of the testes would render both of the children infertile, however the consensus of medical opinion was that by reason of the syndrome each child was almost certainly likely to be infertile even without the proposed surgery. The parents of the children applied to the Family Court for approval and authorisation in order to instruct the treating doctors to conduct the surgery.
Comment from Mark Streeter Sydney Family Law Lawyer
Justice Murphy, after an extensive review of the previous cases and legislation relating to this area of the law found that the proposed treatment was more consistent with securing the children’s best long term outcomes both physically and psychologically and the authorisation of the proposed treatment was in the children’s best interests. The Judge made orders authorising the treatment.
In order to protect the identity of both the children, parents and treating doctors, the names of these parties were anonymised. Section 121(9) of the Family Law Act 1975 prohibits publication of information which identifies a party in Family Court proceedings.
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