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.

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

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.

Comment from Mark Streeter - Sydney Family Law Lawyer

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.

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.

See also Family Law Divorce