Costs – who pays when each party has some success

Posted on April 4th, 2018

The Supreme Court recently issued a cost decision that grapples with an issue that occasionally arises once litigation is finalised.  That is, if there are several issues in dispute in the proceeding, and both parties have some measure of success on various issues, who should pay costs?

The usual rule is that ‘costs follow the event’.  That is, the successful litigant usually gets an order that the unsuccessful litigant should pay their costs.  Costs are not intended to be a penalty but rather to recompense the successful litigant for the cost of vindicating their rights.  Where one party is wholly successful, they would ordinarily expect a costs order in their favour.

It is less easy to apply that ‘rule’ where each party has some, but not total, success. Read the rest of this entry »

Jones v Dunkel – the problem of not calling a witness at a hearing

Posted on April 4th, 2018

Most lawyers know the case Jones v Dunkel: in general terms, it is authority for the proposition that if a party does not call a witness who can apparently give evidence about a matter in dispute, the failure to call them allows the Court infer that the evidence of that person would not assist the party. This is one of the reasons why witnesses are often required to give evidence, even though they may not be of particular assistance to a litigant – to avoid an unfavourable inference if they are not called.

A recent Supreme Court decision, dealing with an insurance policy dispute, led to a discussion of the so called “Jones v Dunkel inference”.  The plaintiff made a decision not to call a number of witnesses at trial; and the defendant asked the Court to make a Jones v Dunkel inference. In dealing with that argument, the Court summarised the principles or considerations that are at play in deciding whether such an inference should be drawn. In particular, the Court suggested that it is the person asking for the inference to be drawn (that is, the opponent of the litigant who did not call the witness) who must prove two fundamental things namely:- Read the rest of this entry »

Seeing a parent or a social event: which one prevails?

Posted on February 21st, 2018

As children get older their priorities change, and friends and social groups become increasingly significant to them. This creates a tension between the importance of socialising children and the importance of children spending time with their parents – particularly the parent with whom they do not live.

The Family Law Act obligates a parent to do all they can to encourage children to attend with the other parent pursuant to Orders. Read the rest of this entry »

Straight up or the Sphinx: when Judges speak up

Posted on February 19th, 2018

In family law matters, judges often provide preliminary views and encourage parties to contemplate settlement.  A judge might make comments that appear to favour one of the parties over the other, or that appear to indicate a pre-judgment of an issue in dispute before the presentation of evidence.

In the case of Darley & Darley [2016], the mother sought to set aside Court Orders on the basis that she had agreed to Orders by consent because the judge had placed undue duress and influence on the parties to settle, by highlighting the benefits to each of them of reaching their own agreement. Read the rest of this entry »

You agree to end the litigation… but is it really over?

Posted on February 15th, 2018

Most family law matters resolve by agreement.  Former spouses/partners realise that there is much to be gained from ‘determining their own destiny’ instead of leaving such major decisions as parenting arrangements for their children, or division of their assets to a Judge; someone who does not know them or their children.

However, once the Terms of Settlement are signed, and the Judge formally makes the Order, is that the end?  Usually – yes.  Always – no.  Read the rest of this entry »

Before the wedding bells ring: some considerations for same sex couples in light of the marriage act reforms

Posted on December 14th, 2017

Following the recent monumental legislative change – legalising same sex marriage – some couples have gone from a de facto couple to a married couple overnight as their marriage in overseas jurisdiction has become recognised in Australia.  Further, there is an expectation of a flurry of filing of Notices of Intention to Marry in the coming months, as same sex couples are finally able to legally marry in Australia.

However, as many same sex couples have been in a committed relationship for many years; they have set up their affairs and finances in a specific manner, which may now need to be reviewed and re-considered in light of their changed – or impending change of – marital status.

So, before the cake is ordered, the celebrant booked, and the wedding bells ring, consider:  Read the rest of this entry »

Don’t drink and dial…

Posted on December 14th, 2017

The Christmas and New Year period is a time when spirits are high, drinks are flowing and the consequences of actions are not always considered. Even the simple action of making a phone call or sending a text message can have serious consequences.

It is a criminal offence under Australian law to use a mobile telephone in a way that is menacing, harassing or offensive. This can include the method of use, the content of the communication, or both. Repeated, unwanted calls can amount to harassment under this law.  Read the rest of this entry »

Parenting management hearings – filling the gap

Posted on December 14th, 2017

In addition to the Family Law Review currently underway, the Attorney-General has presented to Parliament a Bill to institute Parenting Management Hearings for family law disputes.

Parenting Management Hearings are intended to fill a gap between Family Dispute Resolution (mediation) and contested Court proceedings in parenting matters.  They are intended to provide self-represented litigants with an alternative to the Court process for resolving parenting disputes.

Unlike the current Court process, where two opposing sides present their case, Parenting Management Hearings will be conducted by a Panel who will undertake inquiries and gather information before reaching a decision.  The Panel will direct the lines of enquiry and the focus of the hearing; and questions will be asked by Panel members, rather than traditional cross-examination.  Read the rest of this entry »

Review of family law system rolls forward

Posted on December 8th, 2017

On 27 September 2017 Attorney-General Brandis QC commissioned the Australian Law Reform Commission to undertake a comprehensive review of the family law system.  Prof Helen Rhoades leads the review.  Further appointments of qualified persons have followed.

The ALRC’s focus is to be on ensuring the family law system prioritises the best interests of children, addresses family violence and child abuse, and supports families, including those with complex needs, to resolve their family law disputes quickly and safely while minimising the financial burden.  The Family Law Amendment (Parenting Management Hearings) Bill 2017 and the Family Law Amendment (Family Violence and Other Measures) Bill 2017 have recently been introduced.  Read the rest of this entry »

Latest ABS figures on marriage – as we used to know it

Posted on November 30th, 2017

The age of couples marrying for the first time has risen over the past 20 years:

Year                Bride                                     Groom

1996                 25.7 years                                 27.8 years

2016                 28.7 years                                 30.3 years.

Statistics do not show trends in who pays for the wedding. In 2016 64% of couples lived together prior to marrying.  This increased to 80% in 2016.

 

Read the rest of this entry »

National Domestic Violence Scheme commences

Posted on November 29th, 2017

Each State and Territory has passed model amendments to existing domestic violence legislation to enable the consistent recognition of  interstate orders. The terminology and laws remain unique to each jurisdiction, as do the conditions in the orders.  The key elements of the Scheme include:

  • A domestic violence order (DVO) made in any Australian State or Territory on or after 25 November 2017, is automatically recognised and enforceable in each other State and Territory. They include final and interim orders.
  • Applications to vary a nationally recognised order can be made in any State or Territory.  Read the rest of this entry »

Is it time to enroll your child in school?

Posted on November 14th, 2017

Starting primary school or high school can be a daunting prospect for children.  It can also be a daunting prospect for separated parents, as they need to work together to determine the most appropriate school for their child to attend.

This is a decision of parental responsibility.

This is quite straight forward while parents remain in a relationship together, and can properly discuss the pros and cons of different schools and reach agreement.  The complexity arises, however, when parents are unable to have respectful conversation – be that verbal or in writing, such as text messages or Facebook – about which school their child should attend.  Read the rest of this entry »

Attorney-General announces review into family law system

Posted on October 10th, 2017

The Attorney-General has commissioned the Australian Law Reform Commission (ALRC) to conduct a review of the Australian family law system; the first comprehensive since the commencement of the Family Law Act in 1975. 

Some of the matters that the Government has asked be reviewed include whether reforms are needed for:

  • Families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness;
  • Collaboration, coordination and integration between the family law system and other Commonwealth, state and territory systems, including family support services and family violence and child protection systems;
  • Improving the clarity and accessibility of the law.

Read the rest of this entry »

Self managed superannuation funds, defined benefit interest rates for 2017

Posted on August 21st, 2017

Superannuation assets in aggregate were almost $2.3 trillion at the end of the March 2017 quarter and are now at an all time historical record level.

It is possible to split the superannuation entitlements of married (and de facto couples, except in Western Australia) as part of a property settlement adjustment.   Such splits need to be the subject of a Court order or a Superannuation Agreement entered into strictly in accordance with the Family Law Act.  Read the rest of this entry »

2017 Budget announcements that affect the family law system

Posted on May 11th, 2017

The Federal Government has made a number of announcements that will affect the family law system in the 2017 budget. Regrettably, these do not include the substantial funding boost that the system needs to remedy the long delays being experienced by litigants in the Courts.

The announcements include:

  • $10.7 million allocation to the Federal Circuit Court of Australia, the Family Court of Australia and the Family Court of Western Australia, to engage more family consultants to help the courts deal with cases involving vulnerable families. This is a thumbs up.
  • $12.7 million to establish parenting management hearings-  a forum to resolve family law disputes between self-represented litigants and which are designed to be a fast, informal, non-adversarial dispute resolution mechanism. The devil may be in the detail, and more information will be needed before further comment. It is unlikely to impact on those families using the Newcastle Registry

Read the rest of this entry »

Superannuation – a protected species

Posted on May 11th, 2017

Superannuation – it is to the asset world what the Orangutan, Black Rhino and Yantgzee Finless Porpoise is to the animal world – a protected species. 

The Superannuation Legislation provides clear rules limiting the use of superannuation, and access to it, other than in accordance with its intended use. For example, in the bankruptcy jurisdiction, superannuation is a protected asset, and is not available to creditors.

The Full Court of the Family Court has maintained the status of superannuation as a ‘protected species’ in the recent decision of Mackah & MackahRead the rest of this entry »

A new streamlined approach to enforcing orders

Posted on April 5th, 2017

The enforcement of parenting orders in the Family Law Courts has long been a difficult issue, as:

  • Judges generally do not welcome these applications, as they are often the product of a more serious underlying issue which cannot be fixed by a penalty; and they take away from the very limited time the Court has allocated to it to determine substantive proceedings (the final orders application).
  • Solicitors are mindful of the Court’s view, and the higher risk of costs orders for parties (both applicants and respondents), and are careful when determining whether or not such an application should be brought.

However, with the increasing number of self-represented litigants in the Court system, the prevalence of these applications is increasing as people look for a “quick fix” to the problem.
Read the rest of this entry »

When ‘missing home’ becomes child abduction

Posted on April 3rd, 2017

We live in a global village.  Our children, friends and relatives travel the world frequently.  They meet, fall in love and partner people from other countries.  Frequently they settle down and start families and make difficult decisions when deciding which country will be their home country to raise their children.  Relationships can be tough and their lives are often subject to different and complex pressures leading to relationship breakdown. 

It is not uncommon for a stay-at-home parent living in a foreign country to feel isolated and to want to return to their home country in order to be near family support and better job opportunities.  Some simply up and leave with the children.  Others visit overseas family with their children for a holiday, and whilst on holiday choose not to return to their partner and former place of residence.   Real people; real problems and difficult solutions.

Read the rest of this entry »

Superannuation death benefits

Posted on February 9th, 2017

If a member of a superannuation fund dies (the deceased) there are a number of elements that determine how their superannuation death benefit will be paid.  These include the terms of the fund’s trust deed, applicable trust laws, the Superannuation Industry Supervision Act 1993 and Regulations (SIS) and the Income Tax Assessment Act.

SIS Regulation 6.22 provides that the trustee can pay a death benefit to any dependent of the deceased or to their Legal Personal Representative (LPR).

Read the rest of this entry »

Court returns child to Ghana

Posted on January 20th, 2017

Court Returns Child to GhanaFrom time to time the Australian courts are required to decide with which parent, and in which country, a child should live until it can be determined which country’s Courts will resolve the matter on a final basis.

In the recent case of Acquaah-Akuffo and Abioye (2016) the Full Court of the Family Court of Australia dismissed a Father’s appeal against orders to return a child to Ghana pending the determination of which country was the appropriate forum for the final hearing.
Read the rest of this entry »