After separating from your spouse, you may encounter disagreements in regards to the parenting arrangements for your children.

This guide will describe the ins and outs of Family Law in Australia, helping you to understand the various routes to take in order to dissolve your relationship and resolve child custody issues amicably.

1. Attempt to resolve the disagreement before starting court proceedings

This can be done by undergoing counselling and making a genuine effort to contact the other party.

Note that mediation (also known as Family Dispute Resolution), is compulsory before undergoing court action. Exceptions to this include factors such as domestic and family violence which render the case urgent. In most cases, the court will need a Certificate from a Family Dispute Practitioner to allow the case to continue in court.

2. Taking the matter to court

There are two ways you and your spouse can determine the terms of custody: a Consent Order and a Court Order.

A Consent Order is when both parties agree to a set of terms and submit the agreement to court.

A Court Order is used when the two parties can not come to an agreement, and a judge is required to decide the outcome.

It is important to note that both Orders are legally binding and enforceable by the Court.

3. Decision Process

Child custody disputes in Australia are governed by the Family Law Act 1975.

The primary consideration of the court in deciding custody is the child’s wellbeing and best interests.

The number one factor dictating the outcome is the safety of the child, both physical and psychological. Issues such as neglect, abuse, and domestic violence fall under this bracket.

Other factors taken into consideration when deciding custody include:

• the wishes of the child themselves (although the maturity of the child will influence the court’s decision)
• the relationship between the child and each of the parents
• whether the parents can fulfil their parental duties (including financial factors)

If you and your ex-partner have not yet agreed or are unable to agree on arrangements with your child, then please contact our experienced solicitors at 02 8999 9809 for assistance.

Having commenced 1 September 2021, the Federal Circuit and Family Court of Australia are now equipped with a dedicated electronic Court list to investigate and manage non-compliance with Family Law Orders.

This change follows a recommendation from the Joint Select Committee on Australia’s Family Law System in March this year, with Chief Justice William Alstergren noting “compliance in family law has long been a real problem for our system” and “it is perhaps the worst jurisdiction in Australia for compliance.”

Non-compliance has significantly impacted the effectiveness of the Court and has subjected parties to further frustration and delay following long Divorce, Parenting and Property proceedings.

Under the new National Contravention List, applications will be administered by Registrars at first instance, who will assess each application and where appropriate, refer to either a Senior Registrar or Judge.

The key objectives of this new list are:

1. To efficiently deal with applications on a national basis in a timely, cost effective and safe way for all litigants;
2. For applications to be given a first return date within 14 days of filing;
3. To ensure compliance with Court Orders by all parties;
4. To impose appropriate penalties or sanctions where a contravention has been proved and where a party has failed to demonstrate that they had a reasonable excuse for non-compliance with Court Orders;
5. To proactively facilitate the resolution of underlying issues in disputes that lead to the filing of such applications;
6. To triage appropriate matters to dispute resolution; and
7. To be responsive to a party’s wishes to resolve matters without recourse to litigation.

It is hoped the National Contravention List will provide speedy and cost-efficient mechanisms for parties to enforce compliance with Family Court Orders.

If your ex-spouse is not complying with Family Court Orders, our solicitors are able to assist you in making a Contravention Application to the Federal Circuit and Family Court. Please contact our offices on (02) 8917 8700 should you require assistance.

What is a Kennon Claim?

A Kennon claim occurs where a party seeks an adjustment to property settlement in their favour, where their contributions to the asset pool during the relationship were substantially hindered by family violence inflicted upon them.

It has been noted in later decisions such as Kosorvski v Kosorvski that a Kennon claim is not a means of compensation, punishment or deterrence. Rather, it is ‘symbolic recognition of the extraordinary efforts of one spouse in persisting with contribution in the face of enormous and unjustified adversity’.

Kennon & Kennon

This case involved the wife seeking common law damages arising from the assaults occurring during the party’s five-year relationship, in addition to the property settlement.

Whilst the trial judge held that family violence during marriage could be accounted for when assessing the parties’ respective contributions pursuant to s79 Family Law Act, he held the family violence had not affected her contributions during the marriage to the extent she had already been compensated from the damages received for assaults she had particularised.

On appeal, the majority of the Full Court found that family violence ought to be taken into account as an issue of contribution for the purposes of s79, rather than by way of common law damages.

Specifically, the Court laid out the elements for such a claim.

The effect of the decision was to lower some of the evidentiary barriers to obtain favorable property settlements where a party is significantly impacted by family violence. The outcome of the judgement was that the wife was entitled to a further $300,000 increase to her property settlement.

Elements

If a party is to rely on a Kennon claim, evidence must be adduced to:

1. Establish a violent course of conduct by the other party;
2. Establish the violent conduct had a discernable impact on the victim; and
3. Establish the victim’s contributions to the relationship were made substantially arduous as a result of the violent conduct, in a way which is quantifiable by the Courts.

Average Adjustment for Successful Claims

The Australian Journal of Family Law revealed the average adjustment for a successful Kennon claim was 7.3%, with the general range being between 5-15%.

These successful cases typically involved claims of physical, verbal and sexual abuse and/or controlling, intimidating and oppressive behavior.

Recent Outcomes

Benson & Drury [2020] FamCAFC

This case concerned parties ending an eleven-year de-facto relationship with two teenage children. The net-asset pool amounted to $2,000,000, and both parties agreed their contributions were equal, with the exception of unequal contribution to the purchase price of their home.

The wife relied on Kennon, and the trial judge awarded a 5% adjustment in her favor. On Appeal, the Full Court held that the correct interpretation of the elements involves assessing which contributions were made more arduous against other contributions. This can involve assessment of direct, indirect, financial or non-financial contributions.

Baranski v Baranski (2012) 259 FLR 122

The Full Court extended the previous requirement that the family violence must have occurred during the marriage, to include post-separation family violence.

Stephens v Stephens (2005) FamCA 905

The Court held that the phrase “course of conduct” is broad, and does not necessarily have to be frequent to constitute a course of conduct, though a degree of repetition will be required. In this case, verbal abuse once every six months over the course of a 16-year relationship was sufficient.

If you would like to learn more about Kennon claims or think they might be relevant to your circumstances, please do not hesitate to contact our solicitors on (02) 8917 8700.

With Christmas fast approaching, it is important that parties who are unable to decide parenting arrangements between themselves for the Christmas holiday period make applications to the Federal Circuit and Family Court of Australia on or before Friday, 12 November 2021.

Every year the Court has a deadline for parties to file an application to the Court. Applications filed outside of this date with respect to arrangements for children during the Christmas school holidays may be rejected, unless of course mitigating circumstances arise.

If you and your ex-partner have not yet agreed or are unable to agree on arrangements for the upcoming holiday period with your child, then please contact our experienced solicitors at 02 8917 8700 for assistance.

Decision in Re Jamie

 In Re Jamie [2013], the court held that proceeding to Stage 2 treatment of Child Gender Dysphoria requires approval by the Family Court irrespective of unanimous agreement between all parties, and that parents are unable to provide consent to this treatment due to its irreversible nature.

As medical expertise developed in this area, this decision became broadly criticised for narrowing the ambit of parental responsibility, and imposing onerous costs, delay and burdens on children and families.

 Departure from Re Jamie and Development of the Law

 In the landmark case of Re Kelvin [2017], the court discussed that since Re Jamie, the state of medicine and the law has rapidly evolved. It was noted the risks involved and the consequences of the treatment being irreversible can no longer be said to outweigh the therapeutic benefit of the treatment where a diagnosis and assessment of treatment by a medical practioner adheres to best practice guidelines. The Court also took judicial notice of the time-consuming, costly and onerous process the Courts had previously imposed.

 This decision now allows families to access necessary treatment without unnecessary legal burdens, and aligns the law with best medical practice.

What Happens When There is Dispute Over Treatment?

Whilst the decision in Re Jamie alleviates requirements to make applications to the Family Court where all relevant parties agree to both stages of treatment, the Court retains its important jurisdiction to resolve disputed treatment decisions.

The Court remains responsible for deciding the following:

1. Whether the child is Gillick competent and capable of providing consent to treatment;
2. Where there is dispute over diagnosis of Gender Dysphori;
3. Where the parties dispute about the proposed treatment; or
4. Where the child is not Gillick competent and one or both parents will not consent to treatment, or a parent cannot be located to provide consent to treatment.

Under the Family Court’s jurisdiction pursuant to s67ZC Family Law Act, applications may be made to the Court to proceed with treatment, with the Court having regard to the best interests of the child.

 If you or a loved one are facing challenging and important medical decisions such as Gender Dysphoria treatment, it is important you obtain both medical and legal advice. Call us on (02) 8917 8700 to find out more.

Following Britney Spears’ public divorce, custody battle and infamous public ‘2008 breakdown’, Ms Spears was involuntarily placed in psychiatric care and under conservatorship of her father James Spears by the Los Angeles Superior Court. For over 12 years, this conservatorship has restricted Ms Spears autonomy over both her personal and financial affairs.

In 2021, #FreeBritney trended, and the public rallied for Ms Spears as she made application to the Court to remove her father from the conservatorship, citing abuse of power and manipulation she has experienced under this arrangement. She succeeded with this application in August this year.

The public nature of this application may have you wondering, what is a conservatorship and how do they work in Australia?

 Conservatorships?

 Broadly speaking, a conservatorship is a court-ordered legal arrangement whereby an individual’s power to make personal and financial decisions is removed where it is determined they cannot do this for themselves, and someone else is appointed to make those decisions on their behalf.

The decisions the conservator is authorised to make are significant and far-reaching, extending to decisions such as where the person lives, collecting of income, determining employment, medical treatment and whether they can drive. In Ms Spears’ case, this power extended so far as forcing her to take certain birth control.

In America, the test for conservatorships is incredibly high, and it is generally unusual for someone to be placed under a conservatorship if they are not severely mentally impaired or elderly. The conservatorship must be the only way to protect that individual’s welfare.

 Do Conservatorships exist in Australia?

 In Australia, the law does not provide for ‘conservatorships’ in the same way as American jurisdictions. Rather, there are different guardianship and financial management laws which vary between states and territories. In NSW, most cases involve a decision made by Guardianship Tribunals, who appoint a financial manager (“administrators”) to take care of financial affairs, and personal guardians to make decisions around the health and lifestyle of individuals. Application to the Guardianship Tribunals can be made by a family member, but also by government employees and carers or medical professionals to form the opinion the individual does not have capacity to make decisions for themselves.

In Australia, guardianships are becoming more prevalent concerning individuals with dementia, where financial managers are appointed to prevent financial abuse, though it has been seen this has been a cause of financial abuse itself. However, the most common area of guardianships relates to the National Disability Insurance Scheme (NDIS). In ascertaining whether guardianship is required, the court will consider factors such as how capable the person is, their best interests, the family support they have access to, and what might occur if a guardian is not appointed.

How are these decisions reviewed?

 Guardianship decisions are subject to review, having regard to the welfare and interests of the individual concerned, though it can be difficult to have financial managers and personal guardians removed.

The structure of appointment in NSW involves a process of “substituted decision-making”, given someone acts on behalf of the individual deemed incapable of making their own decisions. This is criticised by the United Nations and various Australian Disability Advocacy organisations, who advocate for a supported decision-making system based on the individuals’ “will and preferences”, engendering greater agency over their finances and personal lives.

 Why #FreeBritney in Australia?

The #FreeBritney movement is a timely reminder for Australia that our guardianship laws have made little progress to abolish substituted decision-making regimes, which provide opportunities for abuse and neglect of vulnerable and individuals with disability. These issues are currently being explored by the Royal Commission into Violence, Abuse Neglect and Exploitation of People with Disability, which will likely result in significant changes to this area of the law.

Importantly, #FreeBritney is a reminder that coercive control, financial and psychological abuse can exist in many forms, and occur to people from ‘normal’ to ‘superstar’.

If you or someone you know is experiencing challenges with Guardianship Laws, or are experiencing financial or psychological abuse, our offices are available to assist you. Call us on (02) 8917 8700 to find out more.

Herbert Smith Freehills has published its findings about the future of the workplace post-COVID-19 in its recent report, The Future of Work: Remote/Controlled. The research suggests that vaccine mandates, increased use of technology for surveillance of workers and different rates of pay between remote workers and workers in-office could change the workplace as we know it.

The report concentrated on the changes we can expect to see from Australia’s largest companies in the next three to five years. The key findings are:

1. 43% of senior executives indicate that they plan to pay remote workers less than office-based workers.
2. 80% of companies intend to measure workers’ productivity and output, rather than the number of hours worked.
3. 77% of companies plan to use digital tools to monitor the wellbeing of their employees.

These changes raise significant questions, especially about the risk of splitting the workforce in two and how this impacts employee remuneration. Should employees who work from home, saving time and money spent on travel and subsistence costs, be paid the same as their office-going counterparts? If not, would a pay differential penalise certain members of society who are more likely to opt for remote working, such as working mothers?

In anticipation of backlash against these changing workplace rules, several large corporations have already taken steps to restrict employees’ reactions, such as stricter policies regarding public comments, signing petitions and strike actions. This may leave workers feeling as if they have no voice in shaping what the post-pandemic workplace will look like.

If you believe you will be impacted by these changes and wish to find out more, please do not hesitate to contact us for information and advice on (02) 8917 8700.

The Australian Taxation Office (ATO) can now release superannuation information to a family court, under a new law passed at the beginning of September 2021.

New provisions under the Treasury Laws Amendment (2021 Measure No. 6) Bill 2021 make it more difficult for parties to hide the true value of their superannuation assets to their ex-partner and will allow the accurate sharing of information quickly and inexpensively. It is a welcome change in the family law sector as it will make it easier for parties, particularly victim-survivors of financial abuse, to recover their fair share of the matrimonial asset pool.

A party to family law property proceedings can apply to a family court registry to request their ex-partner’s superannuation information held by the ATO. Once granted, parties can then access up-to-date information about their ex-partner’s superannuation entitlements.

Making superannuation information more accessible will improve property division outcomes for all parties, by ensuring the process is just and equitable. It resolves the unfairness that arises where one party is not providing a complete disclosure of their assets and enables parties to engage on a level playing field. This legislation is particularly helpful where there are multiple superannuation entities involved over the years and records are incomplete or hard to follow. Finally, it will help to mitigate the negative effect of separations on retirement incomes, particularly of women.

If you would like to learn more about these new changes in the law or believe that your proceedings may be affected by them, please do not hesitate to contact us on (02) 8917 8700.

The division of inheritance during divorce settlements is a volatile process. Here are some things you should keep in mind.

What is Inheritance?

An inheritance is the practice of passing on a gift of property upon the death of an individual. This can occur either through the Will of the person who has passed away, and if a person has died intestate (not having made a will before their death), then courts will distribute the property pursuant to the succession laws.

Factors to Consider Regarding Inheritance and Divorce

There are many factors to consider when dividing inheritance during a divorce, and this is almost always circumstantial and determined on a case-by-case basis. These factors are set out below.

1. When was the Inheritance Received?

If the inheritance was received by one party around the commencement of the relationship, it is most likely to be seen as a financial contribution to the relationship and will be included in the divorce asset pool.

If the inheritance was received during the relationship, its division will predominantly be based on how the monies was used in the relationship, as well as what the intentions of the benefactor were.

If the inheritance was received after the date of separation, in most cases it will not be viewed as a financial contribution to the asset pool. However as stated above, through judicial discretion, courts can divert from the traditional approaches to inheritance based “upon the circumstances of individual cases” (Miller & Miller [2014] FamCA 591). In this case, the husband received a significantly large inheritance 3 years prior to the end of a 10-year marriage, where parties had two young children. The Full Court found that it was appropriate for the inheritance to be included in the pool of assets while still giving the husband a generous assessment on contributions. This is because the wife had carried the main financial burden in family and she played a more substantial role as a homemaker and parent than the husband.

2. What were the Intentions of the Benefactor?

 The intentions of the benefactor are another factor that must be considered. The court will have discretion to determine the evidence that support the benefactor’s intentions; whether that be the inheritance should benefit the whole family (and will be a part of the asset pool) or whether it is only to benefit the named beneficiary (and kept separated from the asset pool if the beneficiary keeps it separate from other joint assets).

3. What is the Size of the Asset Pool?

 The size of the asset pool in comparison to the size of the inheritance can significantly influence how inheritance will be distributed in a divorce settlement. Specifically, if the size of the asset pool is smaller than the inheritance, a late inheritance may be included for distribution.

Legal Advice

The distribution of inheritance in divorce settlements in Australia is a complex process and many factors need to be considered.

If you are attempting to resolve issues regarding inheritance and divorce and are looking for assistance, please do not hesitate to contact our offices on 8917 8700.