Exceptions to the rule – Who’s listening?

Posted on January 17th, 2019

Exceptions to the rule - who's listening?S 7(1) of the Surveillance Devices Act 2007 (NSW) sets out a general prohibition to a person using a listening device to record a private conversation to which the person is a party. Section 7(3) of the Surveillance Devices Act sets out exceptions to the operation of s 7(1), so that the general prohibition does not apply on particular conditions.

In a recent case, a mother’s lawyers sought to have a recording admitted as evidence and relied on one of the exceptions.  They argued the mother was a principal party to a conversation and consented to the listening device recording the conversation because it was reasonably necessary for the protection of her lawful interests. The reason for the material was that it was evidence of family violence in circumstances where the father denied such family violence, and where family violence often occurs largely behind closed doors and in this particular instance, on an isolated property. Read the rest of this entry »

My Health Record: Are your children at risk?

Posted on January 14th, 2019

My Health Record: Are your children at risk?

In 2012 the Australian Government commenced a digital health record system known as My Health Record.  In May 2017, the Government announced that the system would transition into an ‘opt-out’ basis, rather than ‘opt-in’ due to a lack of uptake.  This means that unless they opt out by 31 January 2019, every Australian (including children) now has a My Health Record. This includes your health information such as healthcare providers you have seen, treatments you have received, and medicines you have been prescribed. Read the rest of this entry »

Issues with Expert Evidence

Posted on November 9th, 2018

Issues with Expert EvidenceMany cases before the courts involve expert reports – such as medical evidence in personal injury cases; accounting evidence in loss of profit cases; and valuation evidence in property cases. However as a 2016 Supreme Court case shows, unless the report demonstrates that the expert has relevant expertise; and expresses the opinion in a way that allows a court to understand how the opinion was reached, it may be rejected as evidence.

The particular case was a complex fire/arson dispute relating to a fire at a property at Mosman in Sydney. At the time of the fire, significant extensions/renovations were underway. The insurer declined the claim on the basis that the property owner had set, or colluded in setting, the fire and had made misrepresentations in relation to his insurance claim. Read the rest of this entry »

Loans to Children – Don’t be Vague

Posted on October 25th, 2018

Loans to Children – Don't be VagueWhen making loans to children, you will probably be nagged by conflicting emotions and truisms.  Should I document the loan for clarity? But they look so happy together and can use it more now than after I die. I worked hard to earn that money; what if there’s another GFC and I need to be repaid?   It’s all peace now, but should I prepare for war? Will a stitch in time save 9?

I cannot over emphasise the need for clarity and documentation when making loans to children.  If it is a loan, it needs to be documented and shown that there is an intention to create legal relations.  The loan document should record the amount(s) being advanced; the interest rate, if any; the term of the loan; and when it must be repaid. If it is a large enough amount and you want security, then you should insist on a registered mortgage.  Speak about the “elephant in the room” with your child’s partner/spouse, as awkward and difficult as that might be.  It is a loan to your child and it will need to be repaid. Read the rest of this entry »

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court

Posted on September 21st, 2018

Controversial changes in the air – Restructure of Federal Circuit Court and Family Court In the week that Australia was changing prime ministers, significant changes were being introduced for consideration in relation to the proposed restructure of the Family Court of Australia (FCA) and the Federal Circuit Court of Australia (FCCA) –  the courts that resolve family and relationships disputes.

On 23 August 2018 the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 were introduced to the House of Representatives. Read the rest of this entry »

Things to tell your Family Law lawyer in the first consultation

Posted on August 29th, 2018

Top 8 things to tell your Family Law lawyer in the first consultationI understand that no one likes to air their dirty laundry to a lawyer they have just met. But, in the context of Family Law there are three important things to bear in mind:

  • You cannot change your past. It is important to be honest about the past if it is relevant to the outcome;
  • If I am going to provide you with sound legal advice, it is vitally important that I know about all the skeletons hidden away in your closet. This is especially true in Family Law, when every seemingly forgotten fact from your past could be important in determining the matter – or in a bad case, could be used by the other side to build a case against you; and
  • I take the duty of confidentiality that I owe you very seriously. Without your express consent I cannot reveal the information you to tell me.

Read the rest of this entry »

The three questions kids are thinking about separation and divorce

Posted on July 9th, 2018

The three questions kids are thinking about separation and divorceRecently the Australian Institute of Family Studies released their Report “Children and young people in separated families: Family Law system experiences and needs”. The report involved interviews with 61 children aged between 10 and 17 years from 47 families in Victoria, New South Wales, Queensland and South Australia.

In summary, the recommendation from the Report is to “give children a bigger voice more of the time”.

From the comments the children made in the interviews, and from what my clients have told me over the years, children involved in Family Law disputes tend to ask the same kinds of tough, wrenching questions about separation and divorce. Read the rest of this entry »

If the husband was the puppet master, who was the puppet?

Posted on July 3rd, 2018

If the husband was the puppet master, who was the puppet?In a recent Family Law Full Court case, it was not in dispute that the husband exercised control over his 99 year old father’s unit trust (UT) including directing agents on behalf of the UT, using the UT’s assets as security for his own personal borrowings; intermingling his funds with the funds of UT and, since 2002, treating the UT as if it was his own.   It was the expectation of his estranged wife therefore that the assets of the UT should be included in the assets to be adjusted between the parties on settlement because the father’s UT was simply a puppet for the husband.

The Full Court and the trial Judge however disagreed and found, that whilst the father remained the owner of the UT, he was not a puppet of his son.  The husband had some “lawful right to benefit from the assets of the trust” and controlled some of the dealings of the UT, but they were not satisfied that the UT was a device used by him for his sole benefit. Read the rest of this entry »

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 »