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LAW 2512: FAMILY LAW

COURSE NOTES

Semester 2, 2019

CONTENTS TOPIC 1: INTRODUCTION TO FAMILY LAW AND THE HISTORY OF THE FLA

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Family Law and the Australian Constitution How have Parliament’s powers been interpreted? Extending Parliament’s legislative power Family Law’s jurisdictional framework Proposed Merger Family Court of Australia Federal Circuit Court of Australia Current Jurisdiction of the Federal Family Courts Future of the Family Law Courts

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TOPIC 2: MARRIAGE AND DE FACTO RELATIONSHIPS

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Overview Recognition of Adult Partnerships Unregistered de facto relationships Duration of an unregistered de facto relationship Definition of a de facto relationship under the FLA Criteria in FLA for determining whether a de facto relationship exists Jonah v White [2011]: De facto relationship held not to exist Factors pointing to the relationship being a de facto relationship at [68]: Factors indicating there was no de facto relationship at [69]: Notion of ‘coupledom’ Maintenance of separate residences may be consistent with ‘coupledom’ Definition of a de facto relationship under the FLA Sinclair v Whittaker [2013]: De facto relationship established Before property settlement can be made by a partner in a de facto relationship Fenton v Marvel [2012]: 2-year requirement not established Pavey v Pavey (1976): ‘Separation under one roof’ case Geographical requirements: Registered de facto relationships: Marriage Who may marry? 1. Any person over 18 if legally able to consent and not married to someone else (MA ss 11, 23) 2. A person who is aged under 18 may marry in certain circumstances (MA ss 12–13) Documents to be prepared before a marriage What is a valid ceremony? No law requiring wife to take husband’s surname Marriage certificates Same and/or intersex marriage Forced marriage Recognition of foreign marriages Marriage provides no right to sexual intercourse 4AA De facto relationships — Meaning of de facto relationship Working out if persons have a relationship as a couple Working out if persons have a relationship as a couple: Example Working out if persons have a relationship as a couple: Example

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TOPIC 3: DIVORCE, NULLITY AND TERMINATING DE FACTO RELATIONSHIPS

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Divorce: The Ground Divorce: How-To Guide

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Prepare Application for Divorce and other documents for Court filing Service of Divorce Application and Accompanying Documents Opposing a divorce The Court process After the Divorce Order An Introduction to Nullity Grounds for Nullity 1. Bigamy 2. Prohibited Relationships 3. Procedural Irregularities 4. Duress 5. Fraud 6. Mistaken Identity 7. Mistake as to nature of the ceremony 8. Party did not understand the nature and effect of the marriage ceremony 9. Party not of marriageable age Nullity: Why bother? Terminating a de facto relationship Case Examples Terminating a De Facto Relationship - Limitation Period

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TOPIC 4: INTRODUCTION TO CHILDREN’S ISSUES

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Overview 1. Part VII of the FLA — Resolve Disputes outside of court 2. Objects of Part and principles underlying it (FLA s 60B) 3. Adviser’s obligations in relation to best interests of the child (FLA s 60D) 4. Family Dispute Resolution (FLA ss 60I, 60J) 5. Family Violence (FLA ss 4(1), 4AB(1)–(2) (definitions of ‘abuse’, ‘family violence’)) 6. Parenting Plans (FLA s 63C) 7. Independent Children’s Lawyer 8. Expert Reports 9. Reports by Family Consultants 10. Parental Responsibility 11. Major Long-Term Issues 12. Other Children’s Issues: Non-examinable 13. Introduction to Parenting Orders

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TOPIC 5: PARENTING ORDERS

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Part VII of the FLA The purpose of a parenting order What can orders address? Who may apply? (FLA s 65C) How to obtain a parenting order? (1) By Consent (2) By Contested Application s 60B(1) — Objects of Part VII s 60B(2) — Principles underlying these objects (except when it would be contrary to a child’s best interests) s 60SB(3) — Aboriginal culture Orders obtained by contested application s 60D — How the views of a child are expressed Presumption of equal shared parental responsibility when making Orders s 65D — Court's power to make parenting Orders Litigation — An Adversarial Process Family Dispute Resolution (‘FDR’)

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Alternative Dispute Resolution Drafting tips Notes Parenting Order: Example

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TOPIC 6: CHILD SUPPORT (NON-EXAMINABLE)

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This topic was non-examinable in Semester 1, 2019.

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TOPIC 7: INTERNATIONAL REGULATION

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Hague Convention Objectives of the Hague Convention Hague Convention Matters Not Bound By the Primacy Principle Requirements Governing Return of a Child — reg 16 Child Settled in New Environment Requirements Governing Wrongfulness Of Retention or Removal of a Child reg 16(1A) — Requirements for Return of a Child Habitual Residence Rights of Custody Rights of Custody defined in FLA s111B(4) Grounds On Which A Court May Refuse An Order To Return A Child 1. ’Actually’ Exercising Rights of Custody 2. Consent or Acquiescence 3. Grave Risk Of Physical or Psychological Harm 4. Objection By The Child to Their Return 5. The Protection Of Human Rights And Fundamental Freedoms

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TOPIC 8: INTRODUCTION TO PROPERTY SETTLEMENT

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Preliminary Issues in Property Matters Table of Equivalent Provisions: Matrimonial and De Facto in FLA Institution of Property Proceedings: Time Limitations Hardship Exercise of Judicial Discretion 1. Cause of delay 2. Merits of the Application 3. Prejudice to the Respondent Urgent Spousal Maintenance s 77 — Urgent spousal maintenance s 72 — Right of spouse to maintenance What’s meant by ‘adequately’ in s 72 Interim Spousal Maintenance vs Urgent Spousal Maintenance Injunctions for Protection of Property (e) an injunction in relation to the property of a party to the marriage Injunctions for Protection of the Person Enforcement Powers — s 114AA Powers of Arrest Use of FLA Injunctions in Practice Injunctions for Protection of Property Caveats — Recommended in all cases Injunctions for Use or Occupation of Home De Facto Property Injunctions

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TOPIC 9: PROPERTY INTERESTS I AND II

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Introduction Separation Death Nature of Property Distribution under the FLA

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De Facto Property Distribution Jurisdiction for property distribution Jurisdiction for de facto property distribution Different approaches to assessing property The 5-Step Process in Property Settlements — Endorsed by courts STEP 1: Identifying the Matrimonial ‘Property’ Both Legal and Equitable (Assets and Liabilities). (s 4 (Definitions)) Financial resources Asset Types (Table): Property or Financial Resource? (and Authority) STEP 2: Is it ‘Just and Equitable’ to Make an Order Altering Property Rights? (s 79(2)) Stanford v Stanford: Property Settlement when still married (Dementia) Case 1. Stanford v Stanford [2012] HCA: ’Just and Equitable’ to make an order altering property rights. 2. Bevan v Bevan [2013] Fam: Not ‘just and equitable’ to make an order altering property rights. STEP 3: Assess the Parties’ Contributions (Financial, Non-Financial and to the Welfare of the Family). (s 79(4)(a)–(c)) (i) Financial contributions made directly or indirectly by or on behalf of a party to the marriage to the acquisition … of any of the property: s 79(4)(a). Property Contributions Made During Pre-Marital Cohabitation Property Contributions Made Post-Separation Financial contribution made directly on behalf of a party to the marriage to the acquisition of property. (79(4)(a) Attribution of Financial Contributions May Be Difficult Direct Financial Contribution to Conservation or Improvement of Property (s 79(4)(a)) Indirect Financial Contribution to Conservation or Improvement of Property (s 79(4)(a)) (ii) Indirect Non-Financial Contribution to Acquisition, Conservation or Improvement of Property: s 79(4)(b). In the Marriage of Whiteley [1992] FLC 92-304 (artistic muse contribution case) (iii) Contributions Made by Parties to the Welfare of the Family: s 79(4)(c). STEP 4: Court must take into another range of matters listed in s 75(2) (the needs and resources) (s 79(4)(e)) (a) The age and state of health of each of the parties. (b) The income, property and financial resources of each of the parties and the physical and mental capacity of each them for appropriate gainful employment. (c) Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years. (d) Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; or (ii) a child or another person that the party has a duty to maintain (e) The responsibilities of either party to support any other person (ie moral obligation to support) (f) The eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme. (g) Where parties have separated or divorced, a standard of living that in all circumstances is reasonable. (h) Relates exclusively to maintenance applications (ie, not property settlements). (ha) The effect of any proposed order on ability of a creditor of a party to recover creditor's debt. (j) and (k) Relate exclusively to spousal maintenance applications. (l) The need to protect a party who wishes to continue that party’s role as a parent. (m) If either party is cohabiting with another — the financial circumstances relating to the cohabitation.* (n) The terms of any order made or proposed to be made under section 79 in relation to: (i) The ‘property’ of the parties (property is determined in Step 1 — matrimonial property pool) (na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, (naa) The terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

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(i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by sub-para (i) and of a person covered by subparagraph (ii), or of either of them (o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account (eg domestic violence or dissipation of assets). (p) The terms of any financial agreement that is binding on the parties to the marriage; and (q) The terms of any Part VIIIAB financial agreement that is binding on a party to the marriage. Note: STEP 5: Do The Proposed Property Orders Overall Produce A Just and Equitable Outcome? (s 79(2) s 79A: Setting Aside of Orders Altering Property Interests

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TOPIC 10: BINDING FINANCIAL AGREEMENTS (‘BFAs’) AND SUPERANNUATION

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s 90D — after separation not after matrimonial breakdown or after divorce. Otherwise, if after matrimonial breakdown, will be considered under s 90C (during). What is a BFA? Advantages and Disadvantages of BFAs What do they cover? Separation declaration Formal requirements Remedial Savings Clause: s 90G(1A) Provisions for Terminating a BFA: s 90J Provisions for Setting Aside a BFA: s 90K Grounds

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TOPIC 2: MARRIAGE AND DE FACTO RELATIONSHIPS

Marriage Act 1961 (Cth): s s s s s s s s s s s s s

5(1) — Interpretation: eg, ’authorised celebrant’, ‘marriage’, ‘marriage celebrant’, ‘minister of religion’. 10 — Application 11 — Marriageable age 12 — Authorisation of marriage of person under age of 18 years in exceptional circumstances 13 — Marriage of minor not to be solemnised without consent of parents etc. 14 — Persons whose consent is required 15 — Prescribed authority may dispense with consent in certain cases 16 — Consent by magistrate where parent etc. refuses consent etc. 23B — Grounds on which marriages are void 40 — Application 41 — Marriages to be solemnised by authorised celebrant 42 — Notice to be given and declaration made 95 — Marrying person not of marriageable age etc.

Overview 1. Recognition of adult partnerships 2. Unregistered de facto relationships a) Duration of an unregistered de facto relationship b) Definition of a de facto relationship under the FLA c) Conditions that must be met before an application for property settlement can be made by a partner in a de facto relationship 3. Registered de facto relationships (in SA) 4. Marriage a) Who may marry? b) Documents to be prepared before a marriage c) What is a valid ceremony? d) Is there any law requiring a woman to change her surname to that of her husband? e) Marriage certificates f) Same and/or intersex marriage g) Forced marriage h) Recognition of foreign marriages i) Marriage and a right to sexual intercourse? Recognition of Adult Partnerships • Until the 1980s, there was no Australian legislation enabling a person who was not married to another to claim property from the other on separation and unmarried couples were unrecognised for almost all legal purposes • This status changed through the introduction of state laws, which were then extended to recognition in a wider range of state laws and in much federal law • Once broad recognition of heterosexual de facto couples had occurred, these laws were then extended to same-sex couples in the late 1990s and 2000s across almost all state laws 5

• In 2008, the FLA was amended to extend to financial disputes on relationship breakdown between de facto couples through a referral of powers from the states • Now there are only a handful of laws that distinguish between married and de facto couples • In 2017, the definition of marriage was changed, allowing same and intersex married couples the right to marry • There are also a more recent range of formal recognition systems (ie registered partnerships) open to couples who choose not to marry Now there are only a handful of laws that distinguish between married and de facto couples —- so property rights for de facto couples under FLA are the same as for married couples.

Unregistered de facto relationships • Same and intersex relationships are now recognised under both Commonwealth and South Australian laws. • Therefore, in this next part of the lecture, heterosexual, same and intersex relationships are all referred to as ‘unregistered de facto relationships’ • Some commentators have argued that it is not appropriate to bring de facto couples within the same property regime as married couples. Eg, Patrick Parkinson argues that de facto relationships cover varying levels of commitment and de facto couples are less likely to be financially interdependent. • An unregistered de facto relationship of any length will be recognised in some areas of law; that is, there is no time requirement for recognition of the relationship. • In these cases, the de facto relationship is treated as a marriage: – Applying for Legal Aid – Social security payments and benefits – Tax – Children (including recognition of the birth of a child to same-sex female parents) – Child Support – Intervention Orders – Agreements about property – Stamp Duty – Criminal Code Duration of an unregistered de facto relationship • In other areas, a de facto relationship must either be registered or have existed for a certain period of time before it is recognised • Depending on the area of law, an unregistered de facto relationship must have existed for a one year, two year or three year period: 1. 2. 3.

One year for recognition: • Migration law Two years for recognition: • Property disputes under the FLA Three years for recognition — state law matters, including: • Inadequate provision in a will or where there is no will • Death caused by a negligent act; Death caused by a crime • Superannuation under a State scheme • Workplace death • Entering into a surrogacy agreement 6

Working out if persons have a relationship as a couple: Example

Jurisdictional Issues •

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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. Sections 90RD, 90SB and 90SM are relevant sections for property settlement where the parties are in de-facto relationship. 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.

Does a de facto relationship exist? As a preliminary issue in de facto property cases it is necessary to establish that a qualifying de facto relationship exists. Where there is a dispute between the parties as to this existence or duration of a de facto relationship it is necessary to apply to the court for a s 90RD declaration. The s 90RD declaration will determine whether a de facto relationship between the parties ever existed and, if so, the period(s) during which it existed and when it ended, whether there is a child of the relationship, and whether either party made substantial contributions of a kind mentioned in s 90SM(4) (a-c). In determining the existence of the de facto relationship the court must undertake a detailed application of s 4AA(2) factors: o o o o o o o o o

Duration is from when parties started living together in the Deadwood property; Lived together on a week about basis; Sexual relationship existed; Shared the cost of living; Both seemed committed to each other; No joint assets or bank accounts; No children; Relationship not registered; Socialised but not often in public.

To determine whether the parties have a relationship as a couple living together on a genuine domestic basis (s 4 AA(1)(c). A party can enter into a de facto relationship if they are already married? (s 4AA(5)(b). If the court determines a de facto relationship existed it must next determine whether a requisite gateway requirement under s 90SM exists. • Brief discussion of the criteria in s 90SB. Namely, have any of the requirements in s 90SB been satisfied? Yes, total period of the de-facto relationship is more than 2 years. Discussion about when the relationship commenced and when it ended during the period from early 2009 until 2 April 2015. 20

Preliminary Property settlement Issues • • • • •

s 44(5): there is a 2 year limitation period from the date of separation. Any application must be filed on or before 2 April 2017. Rick should be advised to lodge a caveat immediately over the title to the Deadwood property. Brief discussion that Rick could seek injunctive orders in his application restraining Jessie from selling the Deadwood property. However, if there is a caveat lodged then the Court may not grant such an injunctive order as being unnecessary. Brief discussion as to whether an application to the Family Law Court for spousal maintenance can be made by either party. Unlikely to succeed because neither party can argue successfully that they are unable to adequately support themselves.

Main Property Settlement Issues • • •

The property listed in the problem fall within the definition of property. Outline the 5 st...