Family Law Summer 2018 Notes PDF

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Notes from entire course, including comments from lecturers. To be used the the first and second assignment. ...

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LLB243 Introduction to Family Law Donna Cooper

[email protected]

Aims of this session:  To introduce you to:  The teaching team;  The aims, learning outcomes and content;  The materials you need to access;  How to study in this unit;  The assessment:  The Letter or Advice to Client; and  The Case Studies. Teaching Team  Donna Cooper: Unit coordinator and Lecturer o [email protected] o http://staff.qut.edu.au/staff/cooperdm/  Dr Danielle Bozin: Lecturer o http://staff.qut.edu.au/staff/bozind/  Chris Turnbull: Lecturer o Sessional academic Aim of this unit  This unit aims to provide you, as a potential family law professional, with an understanding of the family law system, the various options for the resolution of disputes and the relevant legislation and case law and how it is applied in practice. Learning Outcomes:  Provide family law clients with basic legal advice in divorce, parenting, financial and domestic violence matters;  Think critically about areas of family law;  Advise clients of the most appropriate dispute resolution options for their cases and refer them to appropriate services, including counselling, mediation, the legal aid commission, government departments and courts;  Use some of the key social science findings to encourage your clients to enter into child focused parenting arrangements for their children; and  Identify and describe the key ethical priorities of family lawyers, including the duty to promote the best interests of children in parenting disputes. Content of unit  What is "a family" and what is "family law"?  The family law system - the role of dispute resolution processes in family law, including negotiation and mediation, and the role of the various courts;  Divorce;  Parenting arrangements;

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Social science research to assist in ascertaining what is in the best interests of children particularly at various developmental levels and the impact of parental separation and conflict upon children; Issues surrounding the family law system including domestic violence, family violence and child abuse and protection; Arrangements surrounding financial issues including: Financial support for children; Spousal maintenance; and Property settlement.

Materials you need  Texts; o Prescribed Text  A Harland et al, Family Law Principles (2nd ed., Lawbook Co., 2015).  QUT bookshop; or  http://www.thomsonreuters.com.au/family-law-principles-2nd-editionebook/productdetail/122255 o Casebook  P Parkinson, Australian Family Law in Context (6th ed, Lawbook Co, Sydney, 2015). o Main Legislation  Family Law Act 1975 (Cth);  Domestic and Family Violence Protection Act 2012 (Qld);  Child Protection Act 1999 (Cth);  Child Support (Assessment) Act 1989 (Cth).  Access to Blackboard site;  QUT Readings;  Access to QUT library. How to study in this unit: weekly online modules  Objective: to learn with the law is; o Online content is available on the Blackboard site; o Prescribed Readings; o Optional Readings; o Podcasts (accompanied by slides); o DVDs; o Questions/activities/ quizes. How to study in this unit: workshops  Objective: To learn how to apply the law: o 6 in-person workshops of up to 2 hours see Bb; o Weeks 4, 6, 7, 8, 10 and 11; o All workshops will be recorded and posted to Bb o Internal and external students have access to same materials; o No external school. WARNING: Using old notes  Many amendments in family law

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Old notes will not be up to date Marks will be deducted if you cite old law in assignments

Assessment  Letter of Advice to Client assignment o 2 000 words o 40% o Due 15 January o All materials will be posted under the “Assessment” link on Blackboard and you must submit your assignment via the online link.  You will watch a DVD of an initial client interview on Blackboard;  You will:  Identify the legal issues;  Research the law;  Apply the law;  You will then write a letter of advice to the client;  You will complete a practice Letter of Advice exercise in the week 4 workshop as preparation. 

Case studies o Problem-based questions o 3000 words o Due 7 February 2017 o Examples of past exams are available on Blackboard to give you an idea of problem Qs; o Practical scenarios where you provide advice to client; o Will be on areas covered during semester. o Most common mistakes  Not identifying the correct legal issues;  Using old notes and citing out of date law;  Making general statements and not citing sections of legislation, cases etc in support of statements; and  Not applying the law to the particular facts of the problem.

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You are welcome to use the online discussion forum to post any administrative or content related questions that you have during the semester. A link to this forum is provided on each week’s learning resource page.

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Alternatively you are welcome to make use of the lecturers’ weekly consultation hours.

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Module 1:

What is “family law” and what are “family lawyers”?

Aims of this session To introduce you to:  What “family law” and the “family law system” are and what aspects you will be covering in this unit; o Some aspects of family law are under state courts, others are dealt with in the federal courts  Some of considerations that impact upon family law clients’ access to justice, including their socio-economic means and the high costs of taking cases to court; and  What knowledge, skills and attitudes are important for family lawyers to enable them to work effectively with their clients. What is family law?  Children: When parents separate and need to sort out arrangements for their children;  Financial affairs: When partners who were married or in de facto relationship separate and need to sort out property and financial arrangements (whether or not they have children); and  Issues concerning the welfare of family members. o DVOs and child protection  Laws relating to marriage and separation “No fault” system in relation to divorce: Marriage Act 1961 (Cth)  i.e. neither party has to be at fault – a couple just has to have been separated for more than 12 months o You used to have to show – e.g. adultery  Other declarations: o Declaration of validity of marriage; o Decree of nullity (marriage never valid in the first place) Arrangements for children  Where children will live, how they will spend their time with parents and significant others (e.g. grandparents, stepparents);  Specific issues. egs: o Health o Education (current and future) o Religious and cultural upbringing o Name  If parents can’t reach an agreement – may need third party to help sort it out  See Family Law Act 1975 (Cth) Arrangements for children born of surrogacy/ adoption arrangements[not covered in this unit]  Family Law Act 1975 (Cth);  Adoption Act 2009 (Qld);  Surrogacy Act 2010 (Qld). Financial issues

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Family Law Act 1975 (Cth) o Property Settlement o Spousal Maintenance  Becoming less common  E.g. where children are young and the parent caring for them cannot work o Child Maintenance Child Support Assessment Act 1989 (Cth) o Child Support (generally for minors)

Laws regulating family behaviour and protecting the welfare of family members and children [State laws]  Application for domestic violence protection order: o Domestic and Family Violence Protection Act 2012 (Qld)  Application for child protection order: o Child Protection Act 1999 (Qld) Childrens’ Court  = special court under the Mags court  The Children’s Court hears matters (in Qld) under the Child Protection Act 1999 (Qld).  http://www.courts.qld.gov.au/courts/childrens-court  Queensland Department of Communities, Child Safety and Disability Services can make an application for child protection order if they think child is in need of protection o Jurisdiction arises under s 10 of the Child Protection Act. That section defines a “child in need of protection” as a child who: (a) has suffered significant harm, is suffering significant harm, or is at unacceptable risk of suffering significant harm; and (b) does not have a parent able and willing to protect the child from the harm. “Special medical procedures”: Family Law Act 1975 (Cth)  Application for sterilisation of intellectually disabled girl: Marion’s case o Made to QCAT  Application to seek to perform sex change operation or to seek to start hormone treatment  Application for child to become the subject of a bone marrow harvest to assist a relative with cancer Federal and State Laws  Federal Law o Marriage Act 1961 (Cth) o Family Law Act 1975 (Cth) o Child Support Assessment Act 1989 (Cth)  State Law o Domestic and Family Violence Protection Act 2012 (Qld) o Child Protection Act 1999 (Qld) o Adoption Act 2009 (Qld); o Surrogacy Act 2010 (Qld).

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Federal and State Courts/ Tribunals  Federal Courts/ Tribunals o Family Court of Australia  These are the more serious cases – e.g. sexual abuse, relocation of a child interstate/overseas o Federal Circuit Court of Australia  Most cases will come here o Social Security Appeals Tribunal  Appeals of decisions of the child support agency 

State Courts/ Tribunals o Magistrates Courts  Domestic violence o Children’s courts o Queensland Civil and Administrative Tribunal

Parenting v Child Protection Proceedings  What is the difference between parenting proceedings in a family court and child protection proceedings in a children’s court? o In short:  Parenting = between parents  Child protection = people in department make applications – last resort o The Family Court of Australia and the Federal Circuit Court of Australia are federal courts, while the Children’s Court is a state court. Federal court jurisdiction is separate from the state court jurisdiction; o Does the Children’s Court deal with matters relating to parenting issues between parents? No. Proceedings relating to parenting issues are dealt with by family courts. o Children’s Court deals with issues between DOCS (Department of Communities, Child Safety and Disability Services) and parents/significant others. Family Courts  There are two family courts: o Federal Circuit Court of Australia (previously the Federal Magistrates Court); and o Family Court of Australia  In relation to children’s issues: o Deal with parenting issues o The time children spend with each parents o How changeover occurs o How parents will handle decision-making in relation to children o Issues: decisions about schooling, health, names, religion Requirements for commencing an application  Text pp. 31-32  To make an application to a family court it is necessary for the court to have jurisdiction o See Family Law Act s 39(4)

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In matters concerning marriage/divorce and financial matters for married couples there must be a (de facto) ‘matrimonial cause’ o Defined in s 4(1) Family Law Act 1975 (Cth); For example: o Proceedings between parties to a marriage, or by the parties to a marriage in respect of:  Divorce, declaration of validity, decree of nullity of marriage.  Maintenance of either of the parties.  The property of the parties or of each of them.  One of the parties and bankruptcy trustee in property or maintenance.

Section 39 (4) Family Law Act  Proceedings of kind referred to in definition of “matrimonial cause’ in s4(1) may be instituted if. One of the parties is: o Australian Citizen o Is ordinarily resident in Australia; or o Is present in Australia at the relevant date. Section 39(4A) Family Law Act provides that the relevant date is the date on which the application is filed or otherwise made.

Requirements for commencing an application: de facto financial cause  For de factos there must be a “de facto financial cause” s4(1) FLA. Legal Aid (Queensland)www.legalaid.qld.gov.au  If a client may be eligible for legal aid, you have an obligation to advise them of that  What is legal aid? o Free legal assistance o Legal Aid Queensland use Federal and State funding; o Funding for family law cases is Federal funding; o Legal aid lawyers:  In-house lawyers;  External lawyers “preferred suppliers”:  Preferred suppliers are private law firms who have entered into a three year service agreement with us to provide quality legal services.  LAQ Grants Handbook .  What are the three tests the legal aid commission uses to determine whether a client is eligible for legal assistance? o Financial eligibility  Very low income or on Centrelink benefits o Merit o Regard to funding priorities  Funding Priorities – Family Law – focus on children o Children, including the appointment of a court appointed independent children’s lawyer o People who have experienced, are experiencing or are at risk of experiencing family violence

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Family members to resolve complex issues relating to the living arrangements, relationships and financial support of their children o State law matters in which a child’s safety or welfare is at risk and there are other connected family law priorities for which a grant of legal assistance could be made. State law matters where the applicant’s safety is at risk and there are other connected family law priorities for which a grant of legal assistance could be made. Types of Legal Aid funding in Family Law Cases o Examples of grants from the Grants Handbook:  Represent your client at a Family Law Conference convened by Legal Aid Queensland.  Aid approved to file/respond to initiating proceedings for Final Orders only in the Federal Circuit Court. o

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What do family lawyers actually do?  Advice – on processes / outcomes.  Negotiation o Direct negotiation (in-person, telephone, correspondence) o Attendance at round table conferences o Representing clients in family dispute resolution/mediation / legal aid conferences o Negotiating throughout cases even when have gone to court  Preparation of Agreements: o Consent orders (parenting and property) o Parenting Plans o Financial Agreements (before, during and after Marriage / De-facto Relationship) o Child Support Agreements  Litigation and court appearances: o Parenting o Property o Family Violence o Child Protection Knowledge skills and attitudes needed to become a good family lawyer  Relevant Law  Court procedure: Rules, Forms, Practice Directions etc  Ability to identify issues quickly o Family law o Other law: taxation, succession o Non-law: referrals to counselling, Centrelink etc  Ability to understand the actual issues in dispute  Recognise and manage the emotional factors  Ability to reduce the level of conflict, lawyer as ‘conflict manager’  Empathy  Ethical guidelines: Best practice guidelines for lawyers doing family law work, 2nd edn, Family Law Council and Family Law Section, Law Council of Australia. o http://www.familylawsection.org.au/resource/BestPracticeGuidelinesv8FINAL.pdf

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Module 2A: What is marriage and family? Learning Objectives  Understand the historical background to laws about “marriage” and “family”; o Foundations in English common law and Christian values o The idea of “marriage” and “family” is ever-changing  Examine how changing social conceptions of “marriage” and “family” are impacting on the law; and o Often the law lags behind society  Understand basic concepts about how to apply for a divorce and important time limits. MARRIAGE  Family law has distinguished between: o Legal marriage between a man and a woman o Heterosexual de facto o Same sex de facto  Four Main Elements of Marriage o Voluntary union – requires:  Consent  An absence of duress  An absence of fraud  An absence of mistake  Capacity  Marriageable age: 18 years old: Marriage Act 1961 (Cth), s 11  If want to marry and under 18 need: o Parental consent; and o Consent of court.  The law provides that where a marriage is not based on a truly voluntary union. In such cases, the court may declare the marriage null. o For life  ABS stats:  113,595 marriages in 2015;  118 962 marriages in 2013;  48 517 divorces in 2015;  47 338 divorces in 2013;  47.5% of divorces involved children under 18 years;  Average duration marriage 12.1 years;  Median age men for first marriage 31.8 years  Median age women for first marriage 29.8 years  ABS, Marriages and Divorces Australia, 2015  http://www.abs.gov.au/ausstats/[email protected]/mf/3310.0 o

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One at a time  BUT if you are in a polygamous relationship overseas and it is officially registered, then it can be registered in Australia  But you can’t register as being in a polygamous marriage in Aus Man and woman [not any more]

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Definition of ‘marriage’ in Australia  Definition inserted into Marriage Act in 2004;  Section 5 definition section: o Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. Status of same-sex marriages entered into overseas  Marriage Act 1961 (Cth) section 88EA provides that certain unions are not marriages – e.g. o A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; …must not be recognised as a marriage in Australia Legal definition of ‘marriage’  Marriage Act 1961 (Cth) s 5 definition derived from Hyde v Hyde (1866) 1 P. & D. 130 where Lord Penzance held that: o “Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others”. o This case arose involved a Morman man who wanted to have more than one wife  ‘Union of a man and a woman’ ? o Corbett and Corbett [1971] P 83  Concerned a person who had been born a boy (George Jamieson) but who had gender reassignment surgery to become a girl (April Ashley)  Application to court was by Arthur Corbett for a degree of nullity to say that his marriage to April Ashley had never been valid because it had been a union between a man and a man not a man and a woman.  He argued that April was not a woman under the Marriage Act  He didn't want her to be entitled to any inheritance  Issue: whether April was a woman  Held: decree of nullity could be made  Used medical approach to say that what her gender was at date of birth was also her gender as at the date of her marriage  Ormrod J: o 3 step test to determine “true sex” – sex at birth according to:  Chromosomal: XY male  Gonadal: male (testicles prior to operation)  Genital: male (prior to operation) o HH ignored:  Psychological factors  Hormonal factors/ secondary sexual characteristics  Summary of reasoning re gender o The biological sexual constitution of all individuals is fixed at birth and cannot be changed (major premise); o Ms Ashley's biological sexual constitution at birth was male; o Therefore Ms Ashley's biological sexual constitution remains male;

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Therefore, Ms Ashley's true sex is male; The validity of the marriage depends on Ms Ashley's "true sex“; o Therefore, the other party being a man, the marriage is invalid.  Purpose of marriage o Institution upon which family is built o Based on the possibility of heterosexual sex – can only be met by person’s of different sexes  marriage for the purpose of procreation o Companionship, mutual support also important Re Kevin (validity of marriage of a transsexual) [2001] FamCA 1074  Application for declaration that marriage between Kevin and Jennifer was valid  Kevin had had gender reassignment surgery (woman  man)  Concerned statutory interpretation as to whether Kevin (who had been born a woman) was a ‘man’ and had a valid ‘marriage’ within the meaning of the Marriage Act 1961 (Cth) ie. whether marriage between a ‘man’ and a ‘woman’  Held: that the marriage was valid  For Cth, AG submitted that decision in Corbett was correct and represented Australian law. Since the husband at birth had female chromosomes, genitals and gonads, for the purpose of the law of marriage he must be treated as a woman, notwithstanding facts relating to his psychology or role...