Family Law past exams answers PDF

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2018 Exam: - Zayne and chantelle met in 2005, married in 2007 - Two children of the marriage, boy 11, girl 7 - The parties commenced residing in South Australia in 2014 when the husband, a world renowned swimming coach - The parties separated in 2017 and both the husband and wife have continued to reside in Adelaide - Pursuant to an Order made by consent in the Court on the 14th of April 2017 the children were to live with the wife - A further Order was made by consent that the children spend time with the husband on alternate weekends and half the school holidays - A further Order made by consent was that the husband and wife have shared parental responsibility - wife has applied for Orders giving her sole parental responsibility and, further, that she be allowed to relocate the children to Fiji - seeks an Order restraining the wife changing the children’s place of residence from their current address and an Order that the children should live with him if the wife relocates to Fiji - husband seeks the existing orders to remain - wife entered into a de facto relationship with her new partner, Amos, about six months ago - wife claims that the husband drives past her residence every day staring into the front window and, in addition, makes rude gestures and comments to her when he is out walking the dog at night - wife further gave evidence of domestic violence during the marriage but was never violent towards the children (did shout threats in their presence) - She states that in Fiji she will have employment in the family business - The wife strongly believes that the quality of her life and that of the children will greatly improve if the relocation were to occur - Husband denies domestic violence and harassment, thinks wife wants to relocate to substitute de facto partner as the children’s new father - Prior to the hearing the court, in accordance with s 62G(2), directed a family consultant to provide the court with a report on the views of the children in this matter - Son wants to move to fiji, daughter doesn’t - Wife suffering from Post-Traumatic Stress Disorder and that this is affecting her relationship with the children - Moving will enable her to escape the close association with the husband and obtain the support and nurture of her extended family Consider how the court would proceed with determining this matter and what final Orders, if any, should be made? Keep in mind the court is not limited to the Orders requested by the parties and may make whatever Orders it believes are most appropriate. What parenting orders should be made and in making these orders the best interests of the child is the paramount consideration (s 60CA).

The objects and principles underlying the best interests of children are found in s 60B(1)(2) (3) and are squarely focussed on protecting children from harm and their spending time with both parents and other people significant to their care. Step 1: is it in the best interests of the child? • Section 60CC outlines the mandatory criteria to be considered in determining what is in a child’s best interests. • Section 60CC is divided into primary (s2) and additional considerations (s3). The primary considerations are: • the benefit of the child having a meaningful relationship with both parents (s 60CC(2)(a)), and • the need to protect the child from physical or psychological harm from exposure to abuse, neglect or family violence (s 60CC(2)(b)). The primary considerations are determined by first considering the additional considerations listed in s 60CC(3). The considerations on the facts in relation to this section are: • Jason prefers remaining with mother and relocating to Fiji. • Naomi is happy to be in the custody of either parent but wants to remain in Adelaide. • Children have a good relationship with both parents. Jason has a good relationship with Chantelle’s de facto Amos but Naomi feels uncomfortable with him. • The parental separation was initially amicable and the parties had agreed to an arrangement whereby the children lived with the mother and spent substantial time with the father under a consent order. • After about 1 year the mother applied to have the consent order altered to sole parental responsibility and to relocating the children form Adelaide to Fiji. • Both parents have fulfilled their obligations to exercise their parenting responsibilities and to financially support the children • The distance between Fiji and Adelaide is in excess of 1500km and would severely limit the capacity of a parent residing in Adelaide to have regular physical contact. • The children were born in Fiji of a mixed Australian/Fijian couple. The children resided in Fiji until they were 7 & 3 years of age and have resided in Adelaide for the last 4 years • There are allegations of family violence against the father arising from alleged arguments, abusive language, harassment and stalking. Step 2: form conclusion of the primary considerations of s60CC(2) An initial analysis of s 60CC(3) would suggest the following re: primary considerations: • •

s 60CC(2a) the children currently enjoy a meaningful relationship with both parents; s 60CC(2b) the children may have been exposed to some low level psychological harm from father shouting at mother in children’s presence. Otherwise no issues about protecting the child from harm seem evident.

Step 3: parental responsibility

Meaning of parental responsibility: When making POs the first thing the court must consider is the issue of parental responsibility. Parental responsibility is defined in s 61B to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children. In cases of parental separation parental responsibility primarily concerns the major longterm issues as defined in s 4(1). Under s 61DA, it provides that there is a presumption of equal shared parental responsibility so that any child has the right to spend equal time with either parent (best interests of the child). However, s 61DA(2) allows for this presumption to be rebutted. It can be rebutted in situations where there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child (s 61DA(2)) or it would not be in the best interests of the child (s 61DA(4)). This occurs most commonly where either of the parties had failed to fulfil their parental responsibilities or participate in decisions about major long-term issues in relation to the child in the past, where there is poor communication or significant conflict between the parties, or where a party has unilaterally provided an obstacle to a beneficial and meaningful relationship between the child and the other parent Conclude: As the s 60CC(3) considerations identify there may have been family violence at a low level but not as a significant concern so the presumption of equal shared parental responsibility will apply. Step 4: time spent with each parent •

Where a parenting order provides for equal shared parental responsibility the court must next consider what time the child will spend with each parent according to the provisions of s 65 DAA.

S 65 DAA(1) requires the court to consider whether the child spending equal time with each parent is both in the child’s best interests and reasonably practicable. In this case the children have not been in an equal shared arrangement since the parties separated but rather have spent primary time with the mother and substantial time with the father. Say in exam: The significant issue here is that for an equal shared arrangement to work, both parents must embrace it as something they believe can be successfully implemented. In this case the bitter nature of the relationship between the parties is a good indicator that an equal time arrangement is not appropriate but that substantial and significant time in terms of s 65 DAA(2) as previously existed is still appropriate. Step 5: any issues? In this case it is relocation Say in Exam: The issue of a relocation of a child requires that the relocating parent (Chantelle) to show that the move will enhance or at least maintain the current welfare of the child by reference to the facts. Here, the mother must on balance demonstrate why a

relocation to Fiji is better for the long-term benefit of the children than remaining in Adelaide where the children will be able to maintain their close relationship with their Father by being able to spend substantial and significant time with them. It is important to distinguish between why the relocation is best for the child as opposed to what is best for the parent, as generally the parent’s interests would not be a significant consideration. A parent opposing the relocation has to show the positives of the present situation together with trying to point out the potential or real problems associated with the relocation. The father’s submissions would likely address: • the strength of the current relationships and the inherent positives; • the loss of time spent with the child, and the expected effect of that loss of time on maintaining a meaningful relationship; • the negative effect of a dislocation from the child’s current circumstances and, • the uncertainty of how the child will adjust to such a substantial change in circumstances. On the facts it is clear that although one child would prefer to move, the other doesn’t. Given their young age, it would likely be appropriate to consider the friendships they have already made in Adelaide and the relationships they have. It would be very difficult for the father, especially given his financial situation to come and visit them often which would most likely decrease the bond the children have with their father. Likely that Fiji is very culturally different from Australia and if the children did move, they would need to adjust to these factors. In this case, strong arguments can be made in favour against the relocation. Step 6: any additional issues? E.g. psych report As the court has power to alter existing orders (s70NBA) the applicant will need to demonstrate there are significant changed circumstances that justify the reconsideration (Rice and Asplund). Getting the psychiatrist’s report into evidence after the trial has closed requires that the proceeding be re-opened before final orders are made. This requires that the further evidence is so material that the interests of justice require its admission and that the further evidence would most probably affect the result of the case (Summitt & Summitt [2009] FamCA 365) . Step 7: Conclusion Likely that the court will keep the order that has already been made. Clear on the facts that relocation is not suitable in the children’s best interests. Considering the lack of evidence regarding the family violence, time spent with the father should not change to what it already is which is substantial and significant time, not equal time. It is the duty of both parents to subjugate their own feelings and accept an order of the court in the spirit of cooperation if it is in the best interests of the child.

If either party is unhappy, they could still apply for an injunction. e.g. the father could apply for an injunction against Chantelle from moving the children from their current residential address (s 68B). Question 2: - Janice and greg met in august 2013 - They both work at the casino (cashier and card dealer) - When they met, janice living with parents, Greg was, at the time, still married and living with his wife, and daughter, then aged 5 years - Janice rented a flat in sept 2014 as a result of the relationship/affair - the parties would go on discreet social outings - Greg did not contribute to the Janice’s household or other expenses but paid the cost of their social outings. - In 2015, Janice fell pregnant to Greg, but the child was born prematurely and died shortly afterwards. -

2015 greg and his wife separated The parties divorced in March 2016 and shortly afterwards a property settlement between the parties occurred.

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At around that time Janice and Greg began associating more openly than previously. Janice spent weekends at greg’s and helped out with household chores each of them appears to have maintained a fair measure of independence and, in particular, to have kept their finances separate from the other In May 2016 Janice received an inheritance of $100,000 from her grandfather. Janice refurnished and decorated Greg’s home and established a garden due to inheritance money. Greg said these weren’t worth exceeding $10,000 in value and when he tried to offer to pay her back she refused in about February, 2017 when Janice began living with Greg, on a full-time basis in his home greg told Janice he wanted their financial affairs to be separate and We can be responsible for joint expenses as we agree from time to time Janice did not take greg’s statement seriously Once they commenced living together the parties seem to have shared the household expenses in a rough sort of way Greg provided Janice with $260 per week as his contribution towards the cost of food and other household items Greg, additionally, paid the council, water rates and electricity costs, and the cost of their recent Gold Coast holiday Greg & Janice each paid the running expenses of their respective cars Janice undertook most of the household duties while Greg was responsible for home maintenance and gardening The relationship between the parties eventually broke down and they separated in April 2018 Soon after separation Janice discovered she was 3 months pregnant with Greg’s child

At the time of separation the de facto property pool between the parties was as follows: 

House (in Greg’s sole name)

$700,000.00



Mortgage registered over house

$400,000.00



Janice’s Motor vehicle

$20,000.00



Greg’s Motor vehicle

$30,000.00



Janice’s savings and other financial assets

$120,000.00



Greg’s savings and other financial assets

$50,000.00



Furniture and household effects

$30,000.00



Greg’s superannuation

$120,000.00



Janice’s superannuation

$75,000.00

Total assets:

$745,000.00

Consider whether Janice and Greg had a relationship that would bring them within the de facto property provisions of the Family Law Act 1975? Assuming that the parties do fall within the property jurisdiction of the Family Law Act 1975 discuss how the court is likely to determine a de facto property settlement between them. Step 1: state background info •

The Family Law Act Cth (1975) as amended applies. The start date for the de-facto provisions in SA was 1 July 2010. Parties must have separated after this date for the new provisions to apply, and this is satisfied on the facts. Janice and Greg can make use of these provisions as their relationship did not commence until 2013/2014.

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The parties are Australian residents and ordinarily resident in Australia for the purposes of instituting any family law proceedings (section 90RG). The proceedings can be commenced in South Australia as the parties were resident in South Australia. Sections 90RD, 90SB and 90SM are the most relevant sections for property settlement where the parties are in de-facto relationship.

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Step 2: does a de-facto relationship exist? Where there is a dispute between parties to any aspect of a purported de facto relationship, a party must make an application for a s 90RD declaration to provide a means by which these matters can be determined well before the court goes on to consider a property application under s 90SM. Under s 90RD (1) the court may, for the purposes of those proceedings (the primary proceedings) declare that a de facto relationship existed, or never existed, between those 2 persons. In determining the existence of a de facto relationship, the court must have regard to s 4AA.

Determining whether a de facto relationship exists- s 4AA •

s 4AA(1) provides that a person is in a de facto relationship with another person if:

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(a) the persons are not legally married to each other; (not relevant)

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(b) the persons are not related by family (not relevant); and

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(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Key issue determined by the elements set out in s 4AA(2)

Janice and Greg aren’t married, they are not related by family as defined in section 6 (not relevant). They appear to live together on genuine domestic basis as of recent times. FLA s 4AA(2) sets out a list of criteria to assist in determining whether a de facto relationship exists, which are: (a) the direction of the relationship; lasted a number of years (b) the nature and extent of common residence; a few years (c) whether or not a sexual relationship exists; yes (having affair, child involved) (d) the degree of financial dependence or interdependence, and any arrangements for financial support; each party largely bore their own costs as of last year where they shard costs of living expenses (e) the ownership, use and acquisition of property; mostly separate (f) the degree of mutual commitment to a shared life; appear they shared commitment

(g) whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship Relationships Register Act SA 2016 (SA); No (h) the care and support of children; and No although Janice discovered after separation that she was pregnant (i) the reputation and public aspects of the relationship weren’t very socialable with friends, private until after Greg’s divorce On balance considering the relevant factors, there was a de facto relationship between Janice and Greg. In reference to FLA s 4AA(5)(b)), a de facto relationship can also be recognised where one of the persons in the relationship is legally married to another, or is in another de facto relationship which is relevant as Greg was married to his wife at the time but then divorced her. •

Note: Relationships Register Act 2016 (the fact that the relationship was registered does not mean it will qualify as a de facto relationship under s 90RD)

Step 3: have the criteria/gateway requirements in section 90SB been satisfied? One of the following conditions must exist in order for the court to make a property order: (a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or Yes this is satisfied. However doesn’t need to be continuous. (b) that there is a child of the de facto relationship; or At the time the relationship ends (if the child is born in the relationship but dies before the relationship ends it will not count) Extends to adopted or biological children but not step-children (c) that: (i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and (ii) a failure to make the order or declaration would result in serious injustice to the applicant; or (d) that the relationship is or was registered under a prescribed law of a State or Territory. The couple have been together for a number of years (over 2) so the requirement of subsection (a) has been met.

Step 4: what are the preliminary property settlement issues? • Section 44(5): there is a 2 year limitation period from the date of separation in which this matter clearly falls. • Janice should be advised to lodge a caveat immediately over the title to the de facto home. • Brief discussion that Janice can also seek injunctive orders in her application restraining Greg from selling the property. However, if there is a caveat lodged then the Court may not grant such an injunctive order as b...