IT’S BEEN A BIG YEAR FOR PROPERTY!

2019 brought with it a range of NEW perspectives on property matters in the Federal Circuit Court. Simply reading the Family Law Act doesn’t give a crystal clear picture of how the court perceives a property issue that it has to rule on. Cases are unique and have variables and circumstances where Judges use the legislation as a base but then make what are called ‘common law’ decisions. In other words, these are decisions based on a judge’s reading of the Family Law Act (or any other relevant legislation) PLUS that Judge taking into consideration the unique circumstances of the matter before the court.

Sometimes judges in landmark cases or appeal proceedings make decisions which change the way a law can be interpreted or viewed. These are called decisions of precedence and once such a decision is made with that level of authority, it becomes the basis for how future decisions in a particular area of family law are made until the next decision of precedence overtakes it. The common law is constantly evolving while the legislation changes at a slower pace until it it changed by the parliament.

Let’s turn it over to our trusty court stickybeak Elroy the Eagle to update you all on some interesting decisions relating to property and spousal maintenance in the Federal Circuit and Family Courts from June till December in 2019.

Eaglets! 
Firstly let me wish you all a feather-full 2020 and may you start the year soaring high with a tremendous squawk.
Ok… enough of the bird humour 😉
2019 had some interesting and unusual moments for the court as they were presented with the usual challenging matters to adjudicate over. Frazzled Judges are thinking of bringing back wigs to compensate for all the lost hair pulled out in dealing with matters regarding property and money.
After all, money does make the world go round.

June 2019


WHERE FAMILY VIOLENCE AFFECTS A PARTIES SCOPE TO CONTRIBUTE

Court did not err in relying on family violence findings in earlier parenting decision in support of a Kennon contribution weighting, where the husband did not object at trial and where there was an abundance of other evidence of violent conduct of the husband
Remember Eaglets, to successfully raise a Kennon argument, the Court must be satisfied that: there was a course of violent conduct by one party towards the other which occurred during the marriage or relationship; and. this conduct had a significantly adverse or negative impact on the party’s contributions to the marriage.

EXPERT EVIDENCE ON PRIZED BOOK COLLECTION INADMISSIBLE

Property – Valuation – Affidavit of bookseller adduced by husband to value his book collection held inadmissible as expert evidence – Affidavit of wife’s alleged expert who was unavailable for cross-examination was inadmissible too – Order made for sale of books.

DENTAL BILLS AND SPOUSAL MAINTENANCE

Spousal maintenance – Urgent lump sum maintenance granted for wife’s urgent periodontal and dental work for which she was being pursued for payment – Section 75(3) (as to disregarding pension) not relevant – Periodic maintenance application adjourned for interim hearing.

July 2019

PROPERTY AND A LONG MARRIAGE – REZONE INCREASES VALUE

Husband’s initial contribution of land soared in value due to rezoning – Judge erred in assessing contributions – Increase in value was “unrelated to the efforts of the parties” – Williams [2007] FamCA 313 “somewhat overstated” importance of an increase in value of an initial contribution, at the expense of all contributions by the parties throughout their relationship.

SHORT AND SWEET RELATIONSHIP …AND PROPERTY

Property – Short childless cohabitation – Initial contribution of entire small pool – Judge’s crediting of interim maintenance payments to appellant against her property settlement (resulting in no settlement being payable) was in error – Contributions reassessed at 90:10 – No adjustment under s 90SF(3).

August 2019

TRANSFERRING PROPERTY TO RELATIVES

Property – Wife fails to prove that a property the husband transferred to his sister and brother-in-law shortly before the parties’ marriage was held on trust for the husband – Court accepts evidence of husband and transferees that the transfer was for good consideration.

PROPERTY – SOLE USE OF THE BEACH HOUSE

Property – Sole use and occupation – Application by husband for sole occupancy of a “currently vacant” beach house occasionally used by his estranged children dismissed – Applicant financially able to rent alternative accommodation but did not want to do so.
No sand between that fellow’s toes I’m afraid!

PROPERTY AND CRAZY INVESTMENT LOSSES BY SPOUSE IN LONG MARRIAGE

Property – 45 year marriage – Elderly parties – Wife’s $1 million mid-marriage inheritance – Pool of $1.74 million included $360,000 notionally added back for wife’s reckless investment losses (not considered under s 75(2)(o) as the waste was identifiable) – Proceeds of life insurance policies paid to husband’s estate added back too – Contributions assessed at 65:35 in wife’s favour.

September 2019

CHALLENGED VALUATION

Property – Valuation by single expert appointed by parties was disputed by wife – Wife was refused leave to rely on shadow expert’s report (her instructions to whom were tainted) – Wife failed to use shadow expert to guide her questioning of the single expert, instead seeking to call him as an adversarial expert.

HUSBAND WITH NO WILL

Property – Husband died intestate (no will) – Wife appointed both as legal personal representative by Supreme Court of NSW and legal personal representative of husband’s estate by the FCC pursuant to s 79(8)(a) of the Act and FLR 6.15.

WHEN YOU DON’T CONTRIBUTE MUCH

Property – Small pool – Wife was of low intellect and contributed very little – Contributions assessed as 75:25 in favour of husband – Finding that wife would never be able to work – Adjustment of 25 per cent in her favour under s 75(2).

October 2019

QUICK SALES AREN’T FAIR

Property – Court erred in dismissing husband’s application for injunction against wife, where parties’ daughter had told him of imminent sale – Injunctions made pending determination of husband’s s 79A application.

PRE-MARITAL PROPERTY

Property – Husband granted sole occupancy of his pre-marital property – Conflict between elderly parties – Wife had ready access to alternative accommodation – Husband’s financial support of her was to continue – Wife also ordered to remove her caveat.

VALUING OVERSEAS PROPERTY

Property – Real estate agent husband’s evidence as to the value of a jointly owned property in China was inadmissible pursuant to s 76 of the Evidence Act (the opinion rule) – Such evidence did not constitute an admission (adverse to his interest in the case) within the meaning of s 81 of that Act to which weight could have been given.

LATE SPOUSAL MAINTENANCE APPLICATION? – NO WORRIES!

In Blevins [2019] FCCA 1923 (11 July 2019) Judge Baker heard an Initiating Application filed in March 2019 for spousal maintenance of $400 per week, filed 23 years after the parties separated and 21 years after their divorce. The parties were 69 and 71. A final order for maintenance had been made in 1999, requiring the husband to pay $750 per month until 8 July 2009 … In 2009 a further final order was made for lump sum maintenance of $275,000.

November 2019

BIG INITIAL CONTRIBUTION AND PROPERTY SPLITS (9 YEAR MARRIAGE)

Property – No error in 80:20 contribution assessment to reflect husband’s initial contribution of $4.97 million (and wife’s $500,000) of a $12.5 million pool –
A nine year cohabitation here eaglets.

SHORT DE FACTO RELATIONSHIP NEEDS INJUSTICE

Property – De facto threshold – Applicant partner for less than 2 years found to have made “substantial contributions” by assisting with renovations but fails to establish “serious injustice” if the order sought were not made.

December 2019

PROPERTY RISES AND SPLITS

Property – Rise in value of property resumed by government treated as windfall for both parties – Trial judge erred by equating periods of separation to the ending of the de facto relationship for the purpose of assessing contributions –Contributions continued during the many separations.

INHERITANCE AND SPOUSAL MAINTENANCE

Spousal maintenance – Applicant wife had inherited $1.6m in 2009, partly spent on property purchases – $520,00 retained in cash, term deposits and shares – While an applicant need not exhaust all capital so as to satisfy s 90SE(1) thresholds, the property of this applicant was such that she was able to support herself – Application for interim maintenance dismissed.

DIVORCE IN DUBAI NOT CONTESTED

Property – Wife’s application for property and spousal maintenance orders permanently stayed on appeal where she had failed to contest divorce proceedings in Dubai (in which she could have applied for property settlement and alimony) – Res judicata can arise notwithstanding differences between laws.

SPOUSAL MAINTENANCE RELEASE…DENIED!

Financial agreements – Clause purporting to release husband from future spousal maintenance held to be void as it did not specify the amount provided for maintenance as required by s 90E of the Family Law Act.

INHERITED PROPERTIES

Property – Court erred by failing to hear and determine wife’s application for declaration as to her one-half equitable interest in family home which husband inherited from his father after trial but before judgment – Further error where inadequate weight given to wife’s contributions.

And there it is folks.

So keep in mind Eaglets that every case before the court is different and the law can only guide the judge particularly if your matter has some complexity or untried element to it.

See you soon with more updates from the court battlegrounds and don’t forget that crack team at the Legal Eagle are always happy to assist self-representers with court preparation and low cost document drafting from applications to affidavits.

Make a free 15 minute appointment with our caring lawyers – HERE

These days the main complaint mums and dads have about family court proceedings involving their children is the way the Independent Children’s Lawyer (ICL) is involved, and the perceived biased opinions they have about important issues like how co-parenting is to be managed.

And when it comes to your kids, ICLs carry a lot of sway in the courts, so it’s important to check and see whether yours is behaving appropriately and abiding by the guidelines that were set up back in 2013 and endorsed by the Chief Justice of the Family Court and Federal Circuit Court of Australia.

Before I begin, I’d like to share a little story about an ICL I use to know whose name shall remain sealed behind these lips.
Firstly, ICLs in many cases are often just normal lawyers often working in suburban firms with enough ‘kilometres on the clock’ to be considered “worthy” of being appointed by the court to act in that role.
Sometimes, ICLs work for legal aid and that work is just part of the mix of what they do.

But let’s go back to my ICL from the local law firm, and by god there are an awful lot of them with only this background.
Firstly, you have to remember that being an ICL isn’t their day in day out work and indeed may constitute just a small percentage of their already overburdened week with a dozen other clients and cases. And with that, they are often time poor and very hard to get a hold of when an anxious parent needs something clarified, or a decision explained.

The ICL I knew was regularly subject to formal complaints from both lawyers appearing for parents, and from self representing mums and dads. This person would often talk off the record about how they had a personal dislike for one of the parties lawyers or one of the parties. They would describe anxious and frustrated parents in very unkind terms like “neurotic”, “demanding”, “dangerous”, “deadbeat”, “promiscuous” and “useless”. And when you think about it, this is the person that is suppose to prepare non biased reports to the court so important decisions can be made about parenting.

Additionally, his reporting was often exaggerated, and as such, not accurate. Reading these reports made me wonder whether he understood that he was appointed to represent the best interests of a child in family law proceedings. To be honest, at times this average suburban lawyer seemed to be getting off on the power trip that came from making recommendations about a child’s future relationship with both their mum and dad. Time and time again the inaccuracies and bias in his reports reflected that.
But at least he got to be “king” for a day hey?

The Role of the ICL

So what are these court appointed lawyers meant to do?
Section 68LA of the Family Law Act regretfully provides the usual murky waters and vagueness to guide us.

Let’s take a look.

68LA (2)  The independent children’s lawyer must:

                     (a)  form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child; and

                     (b)  act in relation to the proceedings in what the independent children’s lawyer believes to be the best interests of the child.

On first reading it almost sounds like the ICL gets to decide what is in the best interests of the child but that wouldn’t be right because the law is also pretty damn clear on what the best interests of the child are all about. And the primary consideration here is the benefit to the child of having a meaningful relationship with BOTH of their parents.

Naturally, the law also clarifies that where violence and abuse are prevalent, that can be overridden.

The law then goes on to state that:

68LA (3)  The independent children’s lawyer must, if satisfied that the adoption of a particular course of action is in the best interests of the child, make a submission to the court suggesting the adoption of that course of action.

Again it all seems so subjective. How can a ICL, who usually has no professional skills beyond the law decide on parenting outcomes? And the one I know would say, “well there’s a report from the family consultant and they met mum, dad and the kid for an hour so that’s what I’ll make all my recommendations for the child’s immediate future on”.
Good lord is it any wonder parents are up in arms about these flimsy processes about deciding their child’s future?

The law also reminds us of something very important about the ICL and their role and duties:

 68LA(4)  The independent children’s lawyer:

                     (a)  is not the child’s legal representative; and

                     (b)  is not obliged to act on the child’s instructions in relation to the proceedings.

Yep that’s right they are NOT the child’s lawyer, and although they are suppose to meet with kids who have reached school age, they don’t have to apply any regard to what a child might want.

Specific duties of ICLs to be impartial often are not done…

 68LA(5)  The independent children’s lawyer must:

                     (a)  act impartially in dealings with the parties to the proceedings; and

                     (b)  ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court; and

                     (c)  if a report or other document that relates to the child is to be used in the proceedings:

                              (i)  analyse the report or other document to identify those matters in the report or other document that the independent children’s lawyer considers to be the most significant ones for determining what is in the best interests of the child; and

                             (ii)  ensure that those matters are properly drawn to the court’s attention; and

                     (d)  endeavour to minimise the trauma to the child associated with the proceedings; and

                     (e)  facilitate an agreed resolution of matters at issue in the proceedings to the extent to which doing so is in the best interests of the child.

Well we all know that much of the above in the way it is worded, leaves open the opportunity for overworked or power hungry ICLs to  steer towards subjectivity and personal bias.
One thing I would note is that it’s a rare day indeed when an ICL actually “facilitates an agreed resolution of matters at issue in proceedings”.

So how should an ICL behave?

How can a court appointed lawyer on a limited budget and a low hourly rate put the time into this sort of complex work of getting two warring parties at court to put together consent minutes. That is a substantial task and I don’t think I have ever seen an ICL achieve it. When in doubt, a good ICL should refer to what the court has set out as a guideline for appropriate behaviour.

♦ Be truly independent of the court and the parties
♦ Act impartially
♦ In professional relationships be skilful, competent and an impartial best interests advocate
♦ Work with family consultants to ensure the best interests of the child (no subjectivity)
♦ Promote a timely resolution of proceedings consistent with best interests of the child
♦ Assist both parties to reach a resolution by negotiation… or judicial determination

The sad thing is that the system is broken and many good ICL’s don’t have the resources or funding to get negotiations on foot, so that agreed outcomes can be worked out.
For the bad ICLs, the work they do ends up being nothing more than a regular cash cow where time is only spent as per dollar allocated and often with bias and subjectivity.
These ones should frankly be shown the door.
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Working out what is in the best interests of the kids

Much of family law in Australia is based on doing what is in the best interests of the children.

So what exactly does “the best interests of a child” mean? You might think it means one thing, while your former spouse might think it means something entirely different. As a lawyer, I see this this quite a bit!

To set your minds at ease and to guide you, the Family Law Act tells you exactly what this vague expression means.

Best interests of the child are primarily:

• The benefit to a child of having a meaningful relationship with both parents.

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

But additionally they are also:

• Any views expressed by the child. (Particularly as the child gets older eg. teens)

• The nature of the child’s relationship with parents and others, including grandparents.

• The extent to which each parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child and to spend time with the child and to communicate with the child.

• The extent to which each parent has fulfilled his or her obligations to maintain the child.

• The effect on the child of any changes in the child’s circumstances.

• The practical difficulties and expense involved in spending time with and communicating with a parent, and the impact on a child of maintaining personal relationships and direct contact regularly with both parents.

• The capacity of each parent and others to provide for the child’s needs. (Poor mental health could be an issue here)

• The maturity, sex, lifestyle and background of the child and parents. (Immaturity, drug use etc. come in to play here)

• The child’s right to enjoy Aboriginal or Torres Strait Islander culture, where relevant.

                
• Each parent’s attitude to the child and to parenting.

• Any family violence involving the child or a member of the child’s family. (This is very important)

• Any family violence order. (Very important again)

• The desirability of making the order that is least likely to lead to further proceedings.
(Here the court tries to play fair with orders so it won’t see the two of you again. But that sometimes is a big misjudgement!)

• Any other fact or circumstance the court thinks relevant.

It’s a lot to take in. The most important or primary things to consider are ensuring your child has a meaningful relationship with both of you and is protected from any violent or potentially violent and/or abusive situation. You can probably guess that the law considers violence and abuse prevention is the most important thing to get right when it comes to your kids.

Separating parents usually understand most of these considerations and work out between themselves how their children will be looked after and where they will live without the courts becoming involved and imposing conditions. I can assure you if you can do this by putting aside your feelings about each other and not treating the kids as pawns you will be well on your way to a hassle free divorce.

Coming to an agreement

Now there are 3 different ways both of you can come to an agreement:

1  A Simple Informal Agreement

♦ Keep the agreement informal by simply coming to an understanding between the two of you as to what will work best for the kids. If you can do this there’s no need to put things in writing.

2  A Parenting Plan

♦ Make a formal parenting plan. This is an agreement in writing made, signed and dated by both parents. The plan deals with parental responsibility; who the child lives with; who they spend time and communicate with; what child support might be involved and other issues. Take a look at the parenting plan info to find out more.

The great thing about a parenting plan is that you don’t need to go to court to get this organised. But it’s important to remember that a parenting plan is not valid unless it was made voluntarily, without any threats, duress or coercion.

As parents you should normally only sign a parenting plan after seeking advice from a lawyer. I say this because a lawyer or experienced legal drafter (lawyer-drafters are much cheaper) has probably done a parenting plan many times prior to seeing you and they can often pinpoint things that may not occur to you to include in your plan.
For example, you might want special days like your birthday to always be a day when you can see your kids. This is good to have in the plan as it may not be your turn to have the kids when certain special days occur.

And always keep in mind those “best interests of the child” considerations when developing your plan.

3  Obtaining Consent Orders

♦ A more official way to sort out your parenting plans if you are both in agreement is to obtain consent orders approved by a court. A consent order is a written agreement that you both agree to that covers parenting arrangements for children. It can also include financial arrangements such as property division and any maintenance requirements that might be needed. Not following consent orders can have serious consequences and you may need to explain to a Judge why you breached the orders that you agreed to.

This is because consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing. It is a document you would both prepare in consultation with your lawyers who will then come up with a single agreement you are both in favour of and send it to the court for approval. Normally you shouldn’t need to appear in court for these orders.

And once again, the court must be satisfied that the orders you ask for are in the best interest of the child.

Here’s a fact sheet on applying for consent (and other) orders from the court.

When you can’t seem to work things out

Sometimes despite giving it your best shot, it may be difficult to reach an agreement (or a fair one) about what will happen with the kids. You might also not want to negotiate with your ex if there could be the possibility of endless arguments or even worse, violence.

If you’re in this predicament you can apply for a parenting order.

But not so fast because there is a process you must go through before the court considers issuing orders about how the kids are to be parented.

The Family Law Act (aka ‘the law’), requires you to obtain a certificate from a registered family dispute resolution practitioner before you file an application for a parenting order. It’s called a 60I certificate.
Family dispute resolution can be done through any accredited family dispute resolution practitioner or Family Relationship Centre.

How family dispute resolution works

Firstly, before any family dispute resolution (FDR) takes place, you are assessed to see if the service is right for your case. Usually, the two of you are interviewed separately to see if FDR is going to work.

The process is conducted by an accredited family dispute resolution practitioner who can help you both discuss any issues you have and how from that you might be able to work out an agreement with a parenting plan.

Finally, it is comforting to know that any FDR discussions you have are confidential and can’t be used in court against you.

So in summary

♦ If you try FDR and it doesn’t work out, or

♦ If your ex did not attend FDR due to the refusal or failure, or

♦ If one of you doesn’t attend FDR because the practitioner did not consider it would be appropriate to conduct FDR…

You still get your 60I certificate, which must accompany your application for a parenting order.
This is what the certificate looks like

There are several important exceptions where you won’t need a 60I certificate including:

♦ If the matter is urgent.

♦ If the Court is satisfied that there are reasonable grounds to believe that there has been child abuse and/or family violence by a party.

♦ There is a risk of family violence by one of you, and/or there is a risk of child abuse if there was a delay in applying to the Court.

♦ Where one of you can’t participate effectively in family dispute resolution for reasons of incapacity, illness or simply living too far away from a dispute resolution practitioner.

♦ If your application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly breached the order has betrayed in a way that shows a serious disregard for their obligations under that order.

What does the court consider when issuing parental orders?

Let’s start by looking at some big misconceptions about how the court makes decisions.

◊ Firstly, women don’t always get the kids. In fact the latest court statistics show that judges made orders for children to spend a majority of their time with their mother in only 62% of cases.

◊ Secondly, the person who initially leaves the relationship and the children may still be able to care for the children in the future. There are all sorts of reasons why people might have to leave initially, and the court will assess the circumstances behind anyone leaving and not just make simple and biased decisions.

◊ Thirdly, blaming the relationship breakdown on one person and then saying that they shouldn’t get the kids means very little to the court. The court doesn’t want to know about the ‘ins and outs’ of your personal relationship. It’s whether a parent’s behaviour affects the children is much more relevant.

◊ Finally, neither of you are necessarily entitled to 50:50 equal time. The court will look at what is in the child’s best interests, and issues of practicality.

In essence, a parenting order is a court order that states who has what responsibilities for the children. These orders cover areas like who the kids live with and who (and when) they spend time with. In the parenting orders there may be reference to where and how the kids are schooled and other things of relevance to their care, like their special needs or medical treatment.

For more detailed information on parenting orders take a look at this great brochure from the Victorian Legal Aid HERE.

Am I entitled to child support?

Regardless of whether or not you’re married, you’re entitled to support from your former partner if you jointly care for a child. We have a great section on child support HERE. The Department of Human Services also has information about child support HERE.

Did you know?
The court may not grant you a divorce if you both haven’t made proper arrangements in all the circumstances for the care, welfare and development of your children who are under 18.

If the court doubts that these arrangements have been made the proceedings in your divorce application may be delayed (adjourned) until the court receives a report from a family consultant regarding those arrangements.

So get those details right for your under 18’s.

Oh… and for those 30 something ‘children’ you still might have at home, for heaven’s sake show them the door and set them free!

For free legal information – check out our resources section HERE.

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