Quinn & Scattini Lawyers

Instances of family or domestic violence can leave victims feeling powerless, however, all jurisdictions in Australia recognise the unique nature of domestic violence and have instigated a number of laws and orders to protect spouses, children, relatives, and household members from violence at home.

Applying for a protection order

A number of parties can apply for a protection order such as victims, the police and certain authorised persons who may be entitled to apply for an order on behalf of victims.

Applications from victims: family members who are the victim of violence, can make an application on their own, or alternatively, request a lawyer to make an application. However, it should be highlighted that depending on the state or territory, victims must be in a defined familial relationship if they wish to bring an application for a protection order.

Applications from the police: one of the important aspects of applying for protection orders is the ability for police officers to make an application on behalf of a victim. However, the responsibility of the police to make an application for a protection order can differ between the jurisdictions.

Applications from authorised persons: certain authorised persons are able to bring an application on behalf of the victim, and in such a circumstance, the authorised person stands in the shoes of the victim. However in some states such as Victoria for example, written consent from either the adult victim or a parent of the child, and/or leave of the court may be required when an application is made.

What behaviours are subject to a protection order?

There are a number of behaviours that may be subject to an order, and the behaviours that can be subject to an order do not necessarily have to be criminal.

Although the definition of what constitutes domestic or family violence may differ between the jurisdictions, the behaviours that may be subject to an order broadly covers conduct that can include:

• physical injury or abuse;
• sexual abuse;
• property damage;
• stalking;
• offensive, threatening, harassing, tormenting, or intimidating behaviour;
• deprivation of liberty, or threats made to deprive liberty;
• injuring animals and pets.

In addition to physical, psychological and emotional abuse, which are behaviours that may be subject to a protection order, some jurisdictions include ‘economic abuse’ as well, which can include coercive behaviour such as forcing the victim to relinquish assets or income for example.

What are the requirements that must be met for an order to be issued?

The requirements for the issuing of an order vary between the states and territories. For example in Victoria and Queensland, the requirement of past family violence, and a likelihood that it will happen again underpins the requirement in the issuing of an order. In New South Wales, it’s a ‘fear’ by the victim, while in Western Australia, the requirement of either past abuse, and a likelihood of repeat, or reasonable fear of future abuse, can require an order to be issued.

What are the types of orders which can be made?

Some of the types of orders that can be made include:

• orders prohibiting domestic violence;
• orders that restrict movement or conduct;
• ouster orders, which allows the court to expel a person from the family home for example.

Matters involving the breakdown of a relationship can be very complex and property settlement in regards to de facto relationships can be particularly difficult. Although the Commonwealth government did introduce laws in 2008 to provide for greater unity in regards de facto property settlement, some jurisdictions may not be participating jurisdictions, however, Commonwealth laws do supersede any state legislation that deal with the same matter. Although, it should be highlighted that there may be differences in relation to de facto property settlement and this piece is only a very general overview.

How is a de facto relationship defined?

Under the 2008 Commonwealth laws, a de facto relationship is defined as:

• parties to a relationship who are not married to one another;
• parties who are not related by family; and
• parties who are in a relationship as a couple and who are living with one another on a genuine domestic basis.

Further additional qualifying factors must also be satisfied to ensure that a de facto relationship is recognised as such in order for the parties to make an application in regards to property, and they are:

• the duration of relationship was at least two years; or
• there was a child which was the result of the relationship; or
• any party who is making the application to the court had made substantial contributions to the relationship; or
• there would be a serious injustice if the court did not make an order or declaration for the applicant; or
• the relationship is registered under State or Territory law.

When are parties to a de facto relationship considered as a ‘couple’?

In considering whether or not parties to a de facto relationship can be considered as a ‘couple’, a conclusion can be made by taking into account some of the following factors:

• the length of the relationship;
• the nature and extent of the parties who were living together;
• if the couple was engaged in a sexual relationship;
• the type of financial arrangements between the parties;
• the type of property arrangements between the parties;
• the degree of mutual commitment of a shared life between the parties;
• whether the relationship was registered in either State or Territory law;
• care and support of any children;
• reputation and the public aspects of the relationship.

It should be emphasised that the factors are considered on an individual basis, and there is no obligation to prove all of the points when establishing the existence of a de facto relationship.

One more important point that should be made, is that the laws expressly cover both heterosexual and same sex relationships.

What happens if the relationship comes to an end?

If a de facto relationship comes to an end, then the date of separation may be of importance in regards to property law, and the question that needs to be asked is: When did the de facto relationship end? When making a determination as to when a de facto couple is no longer considered as such, the same factors used in determining the existence of a de facto relationship will be reversed.

Private property settlement

The law encourages parties to settle their differences without resorting to litigation, and two ways in which property settlement can be achieved by de facto couples is the use of either binding financial agreements or consent orders.

Binding financial agreements: under the provisions of the Family Law Act (the FLA) binding financial agreements can be used to cover property or financial resources that a couple have bought into, or accumulated during the relationship.

One of the aspects that parties may find advantageous in the use of binding financial agreements is that such arrangements can remove the authority of the courts in making an order of property settlement in which the courts would ordinarily be able to make in the absence of such an agreement.

Furthermore, there is no requirement when a binding financial agreement can be created; therefore, an agreement can be created before cohabitation, during cohabitation, or upon the breakdown of the de facto relationship.

Formal requirements of creating binding financial agreements: in order for binding financial agreements to be enforceable, the following requirements must be met:

• the agreement is in writing and signed by both parties;
• the parties have signed a statement specifying that they have received independent legal advice from a lawyer in regards to specific matters;
• certification from the lawyers which is attached to the agreement;
• the agreement is not to be terminated or set aside; and
• a signed copy is given to each of the parties to the agreement.

We should also point out that there is no requirement that a binding financial agreement is to be filed with the courts.

Consent orders: are made by the courts and the prior consent of both parties must be obtained and the order has addressed the agreed upon position of the issues either during dispute resolution, or settlement negotiations. Although, consent orders are created with the approval of both parties, there is however no requirement that all parties draft the order, although they can choose to do so.

Parties can make an application for a consent order in the following ways:

• orally during a hearing or a trial;
• giving a draft consent order to a judicial officer, magistrate or judge during an event in court; or
•  by filing an application (Family Law Rule 10.15).

Property consent orders: the courts will consider property consent orders to be ‘appropriate’ if the following factors are evident:

• matters relating to maintenance, future needs and resources in property matters (ss 75, 75(2), or ss 90SE, 90SF(3));
• obligations to support a spouse (s 72);
• the powers and considerations of the courts in the distribution of property (ss 79, 79(4) or 90SM(4));
• the duty of the courts in attempting to finalise relations between the parties in property matters (s 81 or s 90ST); and
• requirements in dealing with superannuation interests.

Property orders made by the court must be ‘just and equitable’ under the circumstances, and furthermore, the courts can make orders which it considers ‘proper’ for maintenance.

How do the courts make a determination of a ‘just and equitable settlement’?

In assessing what is a ‘just and equitable settlement’, the courts will use a multi-step process in its determination, which includes the following:

• identifying and valuing the assets and liabilities that form the global pool of property subject to settlement;
• assessing the financial contribution of each party to the family assets;
• assessing of non-financial contributions which may include the caring of children maintenance of the home;
• considerations of any ‘negative’ contributions, such as violence, gambling or substance abuse;
• consideration of the future needs of the parties taking into account such matters as age, health, the ability of the parties to support him or herself, and any other commitments;
• the overall fairness of a determination that takes into consideration all of the circumstances of the case. 

The court has the ability to make a parenting order, and alternatively, they are also bestowed the power to alter or terminate such orders under the provisions of the Family Law Act 1975(Cth)(the Act). An order to discharge, vary, suspend or revive some, or all of an earlier parenting order, is itself, a parenting order under ss64B(1)(b), 65D.

When can the court vary a parenting order?

There are no statutory provisions that explicitly outline when a parenting order can be varied, but such a consideration to vary a parenting order is a decision that should not be made easily, and without full consideration.

The Full Family Court in Rice v Asplund (1979) FLC 90-725, stated that varying a parenting order is something that should be taken lightly and in such instances, the applicant must establish the threshold issue which applies to either a new factor that has arisen, or there has been a change in circumstance. When considering the threshold issue, the court is to consider whether the new material placed before it would lead to a different conclusion.

The decision to vary a parenting order will be made in accordance to the nature and degree of the change, with the overriding consideration being the best interests of the child.

When does a parenting order come to an end?

Outside of child maintenance orders, parenting orders will cease upon the occurrence of a terminating event, as outlined in ss 65H, 65J of the Act. Any of the following terminating events will bring a parenting order to an end:

• the child turning 18 years of age;
• the child marrying under 18 years of age;
• the child entering into a de facto relationship under 18 years of age. If confirmation of the de facto status of the child is required, under s 65H(3) of the Act, the court can make a declaration to such an effect that the child is in, or entering into a de facto relationship;
• the child is adopted;
• the child is dying.

What happens if the parent who the child is living with dies?

If a parenting order is in force requiring the child to reside with one parent, and that parent dies, yet, the parenting order does not make a provision for what is to happen to the child, the surviving parent cannot compel the child to live with them as stated in 65K of the Act. However, under s 65K(3) of the Act, the surviving parent or another person may apply for a parenting order that deals with the person or persons with whom the child will live.

We often hear about the growing casualisation of the Australian workforce, and as employers increasingly rely on casual employees, mothers or fathers who choose to stay with their newborn child may be particularly affected during the leave period, and wonder if they are entitled to leave, and if they are, are they also entitled to be paid during the period of leave.

There are two main Acts which provide entitlements for leave and pay:  the Fair Work Act 2009 (the FWA) and the Paid Parental Leave Act 2010 (the PPL Act). For a parent who is a casual employee, determining whether leave or pay is available would understandably be a point of concern.

Who is a casual employee?

The first step in working out the eligibility requirements regarding unpaid parental leave is to answer the question of ‘who is a casual employee?’ It may be difficult to believe, but there is no hard and fast definition of the attributes which constitute a casual employee. However, the common law has shed some light in Reed v Blue Line Cruises Ltd (1996) 73 IR 420, stating that casual employment may involve “... informality, uncertainty, and irregularity of an engagement that gives it the characteristic of being casual...”

The FWA also doesn’t define who is a casual employee with the High Court stating as such in Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545. However, a commonly accepted definition of who is a casual employee can be found in Australian Communication Exchange v Deputy Commissioner of Taxation (2003) 53 ATR 834; 201 ALR:

“A casual employee shall mean an employee who is engaged by the hour and who may terminate employment or be discharged at any moment without notice.”

Eligibility requirements for unpaid parental leave under the Fair Work Act

In order for casual employees to be eligible for unpaid parental leave, they must satisfy the following criteria under s 67 of the FWA:

• the employee is, or will be, a long term casual employee of the employer immediately before the date, or expected date, of birth or placement of the child, or the date on which the employee’s leave is to start; or
• but for the birth or placement of the child, or the taking of the leave, the employee would have had a reasonable expectation of continuing employment with the employer on a regular and systematic basis.

You may have noticed that unpaid leave is only available to ‘long term’ casual employees – which means that the employee must have been employed on a regular and systematic basis during a period of at least 12 months, as outlined under s 12 of the FWA.

Similar to the definition of ‘casual employee’, there is no formulaic approach to employment on a ‘regular and systematic basis’. However, case law regarding the matter has stated that the work must be regular and systematic, rather than specifically looking to the hours and the days of work. Therefore, a defined pattern of rostered hours may be a strong indicator of regular and systematic employment, along with the offer to the employee to undertake work – and regular acceptance of available work by the employee may also be considered as evidence of regular and systematic employment, as was noted in Ponce v DJT Staff Management Services Pty Ltd [2010] FWA 2078.

Eligibility requirements for paid leave under the Paid Parental Leave Act

In terms of eligibility for paid leave, under s 35 of the PPL Act, only requires that a person performs ‘paid work’. Therefore, a person who works for a company for remuneration will be eligible, or if the person is self-employed, the work performed for a business which is carried for profit and controlled by the person, will also generally fulfil the eligibility requirements.

However, under s 31 of the PPL Act, a primary claimant must also:

• Satisfy the work test: within the 13 months prior to the birth or placement of a child, they must have completed at least 330 hours of work in a consecutive 10 month period.
• Satisfy the income test: a person satisfies the income test if their adjustable income for the relevant financial year is no more than the PPL income limit, which currently stands at $150,000 at the time of writing (November, 2012).
• Satisfy the Australian residency test: a person satisfies the residency test: if they are an Australian resident; a special category visa holder residing in Australia; is the holder of a visa determined by the Minister for the purposes of s 729(2)(f)(v) of the Social Security Act 1991 (Cth); and either the person is in Australia, or the person is temporarily absent from Australia for no more than 13 weeks and the absence is in relation to a special benefit under the Social Security Act 1991. It should also be noted that a person may not satisfy the Australian residency test if at the time the paid parental leave claim is made, they have been absent from the country for more than three years.
• Be the primary carer of the child: a person will be considered as the primary carer if the child is in the person’s care during that period, and the person meets the child’s physical needs more than anyone else during that period. Additionally for the most part, only one person can be a child’s primary carer on any given day.
• Have not returned to work: a person will be deemed to have returned to work on a day on or after the birth or placement of a child if, on that day, the person performs one hour or more of paid work. However, defence force members and law enforcement officers are allowed up to 10 hours of ‘keeping in touch days’, which will not count as return to work, therefore, not disentitling the person from the benefit. For other employees, if the purpose for the day is to allow the person to keep in touch with their employment which will assist in the person’s return to work at the conclusion of the leave period – such a day will be considered as a ‘keeping in touch day’. However, for the day to be considered as a ‘keeping in touch day’, both the employer and employee must agree to the day, and it must not occur within 14 days of the child’s birth or placement. A person who is self-employed may be allowed to oversee their business and perform the occasional administrative task for business purposes without the work counting as a return to work. However, you should always check with your lawyer to get clarity of the situation.  
• Not be entitled to the baby bonus, have a partner or ex-partner who is, or was, entitled to the baby bonus in relation to the child.

For a child who is adopted, the eligibility requirements are similar to the eligibility requirements for a birth of a child. The only really differentiator is that for a parent to be eligible for paid leave in regards to an adopted child – the child must be under the age of 16 at the date of placement (s 275(2)).

When bankruptcy and family law collide, the results are how shall we say it? Difficult. Under s 58 of the Bankruptcy Act 1966 (Cth), once a person becomes bankrupt, that person’s divisible property vests in the trustee. However, under s 116 of the Bankruptcy Act, certain property such as superannuation, tools of the trade, some furniture, and transport can be exempt, but the fact still remains, that the interaction between bankruptcy and family law is extremely complicated.

How can bankruptcy affect the property of a spouse?

With the introduction of the Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth)(the Amendment) afforded non-bankrupt spouses greater protections in property proceedings with the insertion of the s 59A provisions into the Bankruptcy Act. The provisions provides that ss 58 and 59, being the vesting sections, are subject to orders made under Pt VIII of the Family Law Act 1975 (the FLA). So what does that exactly mean? Well, what it essentially signifies is that the income of the bankrupt does not vest in the trustee, therefore, allowing a non-bankrupt spouse the ability to seek maintenance from a bankrupt spouse.

The Amendment gave a non-bankrupt spouse the right to share property of a bankrupt spouse, and if we look to s 4(1) of the FLA under the definition of “matrimonial cause” at paragraph (cb), reference is made to proceedings between:

• a party to a marriage; and
• the bankruptcy trustee of a bankrupt party to the marriage.

Trustees can join a party to family law proceedings if the court is satisfied that any interest of the creditors of a bankrupt will be affected in a property proceeding, as outlined in s 79(11) of the FLA. What we should highlight is if proceedings are on foot which includes a creditor and non-bankrupt spouse, neither party has greater priority over the other under s 79 of the FLA. In Billtoff and Billtoff (1995) FLC 92-614, the Full Court of the Family Court of Australia at Perth said:

“Although, there is a general rule, it is not absolute, is not prescribed by statute and there are a number of well recognised exceptions. There is no requirement of that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the Court making an order under sec 79, nor is there a rule of priority as between a creditor claimant and a spouse. Those rights, however, cannot be ignored. They must be recognised, taken into account and balanced against the rights of the spouse.”

Under the provisions of s 79(12) of the FLA, there will be certain circumstances where a trustee in bankruptcy must be joined to the proceedings, and the bankrupt needs to obtain leave in order to make submissions if the trustee is a party.

This article is only a brief overview of how bankruptcy and family law interact with one another. Needless to say the area is extremely complex and if you have a matter that involves bankruptcy and family law, please seek the assistance of a lawyer who will be able to help. 

Matters involving finance and property always seem to be a significant point of conflict for divorcing or separating de-facto couples – irrespective of whether the relationship is same sex or not.

How is money and property divided after divorce or separation?

The general approach in Australia is that any earnings and gains in a marriage or de facto relationship, and alternatively, any liabilities and losses incurred, will be shared equally between the parties. As a consequence, monetary and property acquisitions made during the relationship is of great significance, therefore, if a relationship breaks down, differences of opinion regarding the contribution of the parties in obtaining any property and finances may arise.

Can finalisation of a divorce affect division of money and property matters?

For parties who have been married, there is no requirement that divorce must be finalised before property can be divided, and any financial and property matters can be sorted after separation. However, if the divorce process has been completed, the parties have 12 months to finalise any financial and property matters, along with any relevant spousal maintenance issues.

Applying for financial orders

Before an application for financial orders is made, the Family Court requires that applicants must undertake a number of pre-action procedures, and must make a genuine effort to resolve their dispute by utilising the family dispute resolution process. Additionally, parties who submit an application for financial orders in the Federal Magistrates Court, are also encouraged to resolve their dispute before a matter is heard, and failure to do so, may result in the Court ordering the parties to attend family dispute resolution during the filing of an application.

However, there are exceptions to the requirement of undergoing pre-action procedures, such as any allegations of fraud, expiration of the time limit, or where the dispute between the parties is genuinely difficult to resolve.

De facto couples: How are money and property issues resolved?

De facto couples who have shared a genuine domestic relationship of trust and intimacy for at least two years, can make an application for division of property settlement orders – but there are a number of complexities involved.

Before addressing some of the issues regarding property division and de facto relationships, there is no requirement that the parties have children to demonstrate trust and intimacy, and alternatively, a child that is a result of the de facto relationship may also not be necessarily sufficient to show that a legal de facto relationship existed. However, it is beneficial for de facto couples who have formerly been involved with one another to register the relationship with the State or Territory, regardless if the relationship was a same sex relationship or not.

There are a number of complex issues that arise when discussing property division and de facto couples under the Family Law Act 1975 (Cth) (the FLA). Applications must be made within two years of the end of the relationship, but with that being said, limitations may exist regarding the ability of parties to use the provisions of the FLA in dealing with any property matters. For example, in some jurisdictions, the relevant State or Territory legislative instrument may mean that the Commonwealth provisions may not be applicable for such matters.

Child support issues can be emotional, and the law generally encourages parties to reach their own agreements in regards to such matters with as little official interference as possible. In fact, the Child Support (Assessment) Act 1989 (CSAA) actively promotes the fact that parents should enter into their own limited or binding agreements. By creating a private child support agreement, gives parents the flexibility and certainty in regards to future finances, and can also resolve how school fees or health insurance should be funded. Statistically speaking, the majority of parties in Australia who have separated choose to enter into their own private child support arrangements. And by knowing how to create either limited agreements or binding financial agreements, can save you from the high emotional and financial costs of going to court.

Requirements for creating limited child support agreements

In order for parties to enter into limited child support agreements, a child support formula assessment must already have been made via the Child Support Agency (CSA). Additionally, the payable amount outlined in the agreement must not less than the child support formula assessment or the agreement may be invalid. However, for limited child support agreements to be valid, the following requirements must also be met:

• the agreement must be in writing and signed by both parents;
• the agreement must be submitted to the Registrar if it was properly created.

Finally, legal advice is not a mandatory requirement for parties who choose to enter into limited child support agreements, but it’s probably a safe idea to get legal advice.

How limited child support agreements can be terminated

Limited child support agreements can be terminated if there has been at least a 15% change to the income of the party who is paying the child support, and this was not in the contemplation of both parties when the agreement was created. Another method of termination is, if after three years of the agreement coming into force, one of the parties has elected to terminate the agreement.

The courts also have the power to set aside agreements if it is satisfied:

• the agreement was obtained by fraud or a failure to disclose material information;
• another party to the agreement or someone acting for that party exerted undue influence, duress or engaged in unconscionable conduct to such an extent, that it would be unjust not to set aside the agreement.

Other reasons in which the Court may decide to set an agreement aside, is if there has been a significant change in the circumstances to one of the parties, or the child in respect to whom the agreement was made. Finally, if the agreement provides for an annual rate of child support that is not proper or adequate, the courts can also choose to set an agreement aside.

Binding financial agreements

Binding financial agreements can be created before, during or after a marriage, and is generally more difficult to set aside when compared to limited child support agreements. However, binding financial agreements that have been validly executed, can ouster the jurisdiction of the Court in relation to any alterations to property, or orders for spousal maintenance if both matters have been dealt with in the agreement.

Readers should note that unlike limited child support agreements, if parties are contemplating creating binding financial agreements, they must always seek independent legal advice. A lawyer will inform the parties the effect of the agreement has on their rights, as well as stating the advantages and disadvantages in making an agreement.

Circumstances when binding financial agreements can be set aside

Although it is more difficult for binding financial agreements to be set aside, the courts can generally do so in circumstances where one party has acted unconscionably to the other, or on the other hand, the agreement was created to defraud or defeat a creditor, or creditors to the party.

Section 90K of the Family Law Act 1975 (FLA) sets out in detail the circumstances in which binding financial agreements can be set aside, if any reader is interested.

Child support agreements can be complicated, and agreements must be validly executed to have any legal effect. If you have any questions in regards to limited child support agreements or binding financial agreements, please seek help from a qualified lawyer in the area. 

‘The best interests of the child is arguably one of the most familiar principles from the Family Law Act 1975 (the Act), and is the paramount consideration for the courts in making parenting arrangements after a relationship has broken down. Perhaps the larger question in relation to the best interests of the child is: what exactly does the principle mean? And how does the court make their decision in ascertaining what are the best interests of the child? Dealing with separation and parenting orders can be emotional, and difficult for all parties involved, so the best interests of the child is understandably the paramount consideration for courts and is reflected by the Act. Furthermore, although the term, ‘the best interests of the child’ is a principle that may be well known, it is however, little understood. This article will hopefully illuminate some readers who may want to develop a better understanding of what considerations are made in deciding what are ‘the best interests of the child’.

The law

The best interests of the child principles can be found in Part VII, Subdivision BA in the Act, which the courts use as guidance when making a decision on a parenting order. Many people may have a conceptual understand of what the best interests of the child may mean, however, the principle has a different context in law.

In s 60CA the Act states that; “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” As a consequence, the courts will use an objective test in determining what the best interests of the child are. Furthermore, because legislation states that the best interests of the child is the paramount consideration, any personal viewpoint, or belief that the parents may have in regards to the child, may be considered as less relevant if their belief conflicts with what the courts may conclude as to what is the best interests of the child.   

When making a determination, the courts will take into account how much of the parental responsibilities that the parties have fulfilled, and to what extent the parent:

• participated in the decision making about major long term issues in relation to the child;
• spent time with the child;
• communicated with the child;
• facilitated the other parent in fulfilling the conditions stated in the Act.

Factors to be considered for the best interests of the child

When deciding on the best interests of the child, the courts will look at the primary and additional considerations that must be made when issuing a parenting order.

There is no explicit guidance on the circumstances in which greater weight will be given to primary considerations, as opposed to additional considerations. However, case law does suggest that any primary considerations are considered of greater importance when making a determination on the best interests of the child.

As a parent, we all want to protect the best interests of the child, and the courts will strive to make a parenting order that considers the child’s wellbeing. However, family law issues can be complex, and anyone who needs assistance should always seek the appropriate legal help.

This article will look at how the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Bill 2012 (Cth) (the Bill) will apply to particular example situations. The Bill has not yet become law, but is expected to come into practical operation from 1 January 2013. Although the actual benefit introduced by the Bill (known as “Dad and Partner Pay” (DAPP)) is only two weeks at the minimum wage, it is likely that eligible couples will claim it along with the more significant paid parental leave scheme.

Mandy and Steve

Mandy and Steve are expecting a baby on February 2013 and Mandy intends to take a full 18 weeks off under the paid parental leave scheme, while Steve would also like to take some time off too. However, Steve's taxable income last year was $140,000 and he is unsure whether he will be close to the individual taxable income limit for claiming DAPP ($150,000).

DAPP's limit is calculated in accordance with Schedule 3 of the A New Tax System (Family Assistance) Act 1999 (Cth), which is often referred to as the Family Assistance Act. Although the actual calculations are well beyond the scope of this article, Steve should realise that his ordinary taxable income and his adjusted taxable income for the purposes of the Family Assistance Act are not necessarily the same amount.

Mandy and Steve's first move should be to discuss their situation with the Department of Human Services, and establish whether Steve is over the DAPP limit. If he is still able to apply, applications will likely be accepted by the Department for their expected child from November 2012 (three months before their expected date) up until one year after the birth of their child.

Deirdre and Sally – Adopting Parents

Deirdre and Sally are in a de-facto relationship in New South Wales and are pursuing an adoption under the Adoption Act 2000 (NSW). Currently, not all states and territories permit same-sex adoption, although the New South Wales Act was amended in September 2010 to permit couples like Deirdre and Sally to adopt. They are considering adopting young twins and are unsure how DAPP and the general parental leave scheme interacts with their plan to adopt.

Adoptive parents may claim parental leave entitlements in the same way that a couple giving birth to a new child can. However, the DAPP scheme only allows a single claim to be made by the non-primary carer at any one time. This is still the case irrespective of whether a couple gives birth to multiple children or adopts more than one child at a time. In other words, the DAPP scheme does not allow claims to “stack”.

Getting Help

Social security benefit applications are typically not an area of extensive legal practice for lawyers. However, there are well defined rules regarding how the Department of Human Services (just like any other government department) must make decisions and handle information. If you feel that your application has been handled unfairly or improperly, speak to an administrative or family lawyer who has experience in the area.

When a relationship has come to an end and there are children involved, there are a number of issues that parents must deal with, and one of the primary matters that must be addressed, is post separation parenting arrangements. There is no hard and fast rule in how arrangements should be organised, and the overriding consideration is always what arrangements will best suit the child in the particular familial circumstance. Generally speaking, the law encourages that a child spends significant time and communicates with the parent whom the child does not usually reside with after separation. The legislation states that a ‘substantial and significant time’ must be spent with each parent, but what does that mean? Again, there is no magical legal formula which outlines what is meant by ‘substantial and significant time’, however, there is a legal duty for each parent to encourage the child to have a relationship with the other parent when making post separation parenting agreements that may be substantial, significant or equal.

How is ‘substantial and significant time’ defined in the Family Law Act?

Although there are no explicit instructions on how parenting arrangements should be handled between the parties, the Act does offer some direction on what ‘substantial and significant time’ may constitute, and may include:

• weekends and holidays
• weekday arrangements
• an allowance for each parent to be involved with the child’s daily routine
• an allowance for participation by both parents in significant events and celebrations involving the child.

The Act also requires that any arrangements should include the views of the child, and that the type of arrangement organised should be age appropriate.

How is ‘equal time’ defined in the Family Law Act?

If the courts make an order for the child to spend equal time with both parents, it must be reasonably practical to do so, whilst still taking into account the best interests of the child.

Section 65DAA sets out what is considered as reasonable and practicable, and the courts may consider:

• how far apart the parents live from each other
• the capacity of the parents to implement the arrangements being considered
• the capacity of the parents to communicate with each other and resolve any difficulties
• the effects of the proposed arrangements on the child.
  

In circumstances where one parent wishes to argue against the ‘equal time’ arrangements, it must be up the complainant to demonstrate that the ‘equal time’ edict is not in the best interests of the child.

The wishes and best interests of the child

In some circumstances, a child may be unwilling to spend time with the other parent for a number of reasons. However, the wishes of the child, and the legal, best interests of the child considerations are not always the same thing.

Case law has suggested that when a child’s reluctance to spend time with the other parent is so extreme that the child is suffering from a number of physical afflictions which may signify distress, is a scenario which may be considered as a significant factor when the courts are deciding on the type of order to apply.

Each parent must encourage and facilitate a relationship with the other parent

There’s no denying that parents who have separated with one another may not have the most amicable of relationships in all cases, however, the courts generally have still taken the approach that parents should seek to actively encourage and facilitate a positive relationship between the child, and the other parent – irrespective of the nature of the personal relationship between the parents.

If you are seeking a consent order, certain documents must be submitted which is dependent on whether or not a matter is before the courts. In the event that a matter is being heard in court, then there is no need for an Application for Consent Orders, however, if your case is not being heard, then an Application for Consent Orders will be required.

What are the required documents when an application for consent orders is being made?

When making an application for consent orders during a case, the following documents are required:

• a signed Minutes of Consent Orders or Terms of Settlement;
• a draft of an order which is to be signed by a judicial officer;
• a cover sheet;
• Parties certification of authenticity of Minutes of Consent Orders, depending on the type of form used;
• a copy of a Superannuation Information form, if required;
• any applicable family violence orders;
• any applicable copies of binding financial agreements that has an effect on any property of the parties.

Alternatively, if an application is made for consent orders where there is no case on foot, the following documents must be submitted:

• a completed Application for Consent Orders;
• a signed Minutes of Consent Orders/Terms of Settlement with a child abuse annexure;
• a draft of an order which is to be signed by a judicial officer;
• Parties certification of authenticity of Minutes of Consent Orders, depending on the type of form used;
• a copy of a Superannuation Information form, if required;
• any applicable family violence orders;
• any applicable copies of a binding financial agreement that has an effect on any property of the parties.
• a certified true copy of a marriage certificate;
• a certified true copy of the child’s birth certificate.

Three copies of all documents besides the marriage and birth certificates are required, and Registries may still accept Applications for Consent orders even in the absence of the marriage or birth certificates. However, both the marriage and birth certificates must be provided as soon as possible, and a failure to submit the documents may prevent an order from being made, resulting in the Application to be thrown out.

When is a cover sheet required for consent orders?

Cover sheets are only used if a matter is already on foot, and is not necessary if there is no case which is being dealt with.

If a cover sheet is required, then on the left hand side of the page should have the ‘address for service’ or all parties, and always include your file reference.

What information is required for the Minutes of Consent Orders?

The type of information which should be included in the Minutes of Consent Orders (sometimes referred to Terms of Settlement) are the type of orders that all relevant parties are seeking from the court, and may include parenting matters or property and spouse maintenance are just two examples.

In filing a Minutes of Consent Orders, it can be done via an attachment to the Application for Consent Orders if there is no current case which is being dealt with, or under a cover sheet.

Introduction

The overarching principle of the Family Law Act 1975 (Cth) with respect to children is the preservation of their best interests. This means that there are no firm rules that require children to spend specific amounts of time with specific relatives. Rather, the court takes a fluid view of the needs of the child in making access orders.

As a grandparent, you do have specific rights under the Act and there is specific recognition of the value that grandparents play in the development and welfare of children. These rights follow changes in 2006 that attempted to deal with the common situation of divorce and a grandparent's loss of access to their grandchildren.

Family Disputes and Breakdowns

A divorce generally takes at least one year in Australia and there is a strong preference by the courts for the couple in dispute to attempt to work out their differences through counselling or mediation. As a grandparent, you can play a role in this initial mediation and the court may be able to specifically order that you take part in the counselling or mediation sessions.

In many cases, your participation in these sessions can help the couple in reaching either reconciliation or a formal parenting plan. The parenting plan, despite its name, can cover time that your grandchildren spend with you and other arrangements. It is a voluntary agreement between the parties and can have a significant role if parenting issues arise in litigation later on. As such, it can be important for you to seek independent legal advice early on to ensure that you can have your rights protected.

Court Orders

If the couple end up in formal litigation, the court can make a range of specific orders that ensure that your grandchildren can spend time with you. These include orders concerning with whom your grandchildren will live and how much time they might spend with either parent. You are also able to apply for orders that recognise your role in the family and ensure that your grandchildren can see you. Remember that the court is always guided by what the best interests of the child would be, so evidence of likely separation anxiety can be important. In addition, the court can have regard to likely ability of a parent to be able to fulfil their role in raising and supporting your grandchildren. This may enable you to lend support to a parent that you believe would be better able to support your grandchildren if the couple were to separate.

In some cases, you may be acting as the primary carer of your grandchildren. This may entitle you to some form of family assistance, although it is perhaps a more important indication of your relationship with your grandchildren. In situations where there is a marital dispute or breakdown, this role as a carer can help indicate the strength of your relationship with your grandchildren and help persuade the court that you are an important part of their lives.

How a Solicitor Can Help

This a particular area of the law where it is important to get early and independent legal advice. A lawyer can assist you by explaining your particular rights under the Family Law Act 1975 and helping you to get the orders you need if mediation fails. In addition, your lawyer is your adviser and can give you perspective based on their experience. This can be helpful in emotionally difficult family matters and is a reminder that you never have to go it alone.

Child support issues can be emotional, and the law generally encourages parties to reach their own agreements in regards to such matters with as little official interference as possible. In fact, the Child Support (Assessment) Act 1989 (CSAA) actively promotes the fact that parents should enter into their own limited or binding agreements. By creating a private child support agreement, gives parents the flexibility and certainty in regards to future finances, and can also resolve how school fees or health insurance should be funded. Statistically speaking, the majority of parties in Australia who have separated choose to enter into their own private child support arrangements. And by knowing how to create either limited agreements or binding financial agreements, can save you from the high emotional and financial costs of going to court.

Requirements for creating limited child support agreements

In order for parties to enter into limited child support agreements, a child support formula assessment must already have been made via the Child Support Agency (CSA). Additionally, the payable amount outlined in the agreement must not less than the child support formula assessment or the agreement may be invalid. However, for limited child support agreements to be valid, the following requirements must also be met:

• the agreement must be in writing and signed by both parents;
• the agreement must be submitted to the Registrar if it was properly created.

Finally, legal advice is not a mandatory requirement for parties who choose to enter into limited child support agreements, but it’s probably a safe idea to get legal advice.

How limited child support agreements can be terminated

Limited child support agreements can be terminated if there has been at least a 15% change to the income of the party who is paying the child support, and this was not in the contemplation of both parties when the agreement was created. Another method of termination is, if after three years of the agreement coming into force, one of the parties has elected to terminate the agreement.

The courts also have the power to set aside agreements if it is satisfied:

• the agreement was obtained by fraud or a failure to disclose material information;
• another party to the agreement or someone acting for that party exerted undue influence, duress or engaged in unconscionable conduct to such an extent, that it would be unjust not to set aside the agreement.

Other reasons in which the Court may decide to set an agreement aside, is if there has been a significant change in the circumstances to one of the parties, or the child in respect to whom the agreement was made. Finally, if the agreement provides for an annual rate of child support that is not proper or adequate, the courts can also choose to set an agreement aside.

Binding financial agreements

Binding financial agreements can be created before, during or after a marriage, and is generally more difficult to set aside when compared to limited child support agreements. However, binding financial agreements that have been validly executed, can ouster the jurisdiction of the Court in relation to any alterations to property, or orders for spousal maintenance if both matters have been dealt with in the agreement.

Readers should note that unlike limited child support agreements, if parties are contemplating creating binding financial agreements, they must always seek independent legal advice. A lawyer will inform the parties the effect of the agreement has on their rights, as well as stating the advantages and disadvantages in making an agreement.

Circumstances when binding financial agreements can be set aside

Although it is more difficult for binding financial agreements to be set aside, the courts can generally do so in circumstances where one party has acted unconscionably to the other, or on the other hand, the agreement was created to defraud or defeat a creditor, or creditors to the party.

Section 90K of the Family Law Act 1975 (FLA) sets out in detail the circumstances in which binding financial agreements can be set aside, if any reader is interested.

Child support agreements can be complicated, and agreements must be validly executed to have any legal effect. If you have any questions in regards to limited child support agreements or binding financial agreements, please seek help from a qualified lawyer in the area.

It’s fair to suggest that drastic changes have occurred since the introduction of no-fault divorce into Australian law. One of the effects that no-fault divorce had was in relation to spousal maintenance, where historically, the awarding of a remedy for spousal maintenance was issued for a wrong, which meant that only the ‘innocent’ party to divorce proceedings was granted maintenance. However, with the change in divorce laws, also signalled a transformation in how the issue of spousal maintenance was to be treated by the law, especially in regards to the approach taken by the courts relating to spousal maintenance applications.

What general approach do the courts take in regards to spousal maintenance applications?

In Marriage of Bevan [1995] FLC 92-600 the Full Court in considering what approach was to be taken in a spousal maintenance application, set out the requirements when awarding spousal maintenance which involves the following:

·         a threshold finding under s 72 of the Family Law Act (the FLA);

·         consideration of the s 74 and s 75(2) provisions of the FLA regarding the powers of the courts in spousal maintenance proceedings, and the matters to be taken into account;

·         no restraint of the principle that pre-separation standard of living is awarded where the means of the respondents permits;

·         discretion of the powers of the courts in spousal maintenance proceedings, taking into account the reasonableness under the circumstances.

When making an assessment of whether a person is able to support him or herself, and in contrast, whether the other party is able to pay, the courts must consider the proposed property orders and the potential effects, as was the issue in Anast and Anastopoulos (1982) FLC 91-201, where the Court stated:

“…the starting point would then be s 72. If the wife established that she was then unable to support herself adequately within the meaning of s 72 and that the husband had the capacity to contribute to her maintenance, the trial Judge should then consider the quantum of s 75 and the form of the order…”

 However, considerations must also be made in circumstances for urgent maintenance when it is required, and whether a determination is needed to be made in regards to property proceedings, per In Marriage of Little [1990] FLC 92-147.

What threshold test is applied to spousal maintenance applications?

Under s 72 of the FLA, the threshold test is set out in the approach to be used in spousal maintenance, and particular attention should be directed to the fact that the section sets out a constraint in circumstances where a spouse is able to maintain themselves:

The right of a spouse to maintenance

             “(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

                     (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

                     (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

                     (c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

             (2) The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.”

In Kiesinger and Paget [2008], the Full Court in reference to s 75(2), “having regard to any relevant matter” qualification of the threshold test, said the following:

“In our view, the concluding words of s 72(1) direct attention to each of the provisions of s 75(2) which the Court, in the exercise of the wide discretion conferred by s 74, considers relevant in determining whether or not a spouse is able to support himself or herself adequately. The reference is not merely, for example, to s 75(2)(b) which directs the court to consider the “income, property and financial resources of each of the parties…” The Court would be entitled, for example, to have regard to s 75(2)(j), which directs the Court to consider “the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.”

One of the important things to be aware of is, that even in instances where an applicant has the care of children under the ages of 18, this is not always a sufficient reason for stating that he or she cannot support herself, as was the case in Keach and Keach [2011] FamCA 192.

What are the considerations the courts make, when issuing a spousal maintenance order?

Upon satisfying the s 74 threshold test, the courts can make an order as it considers “proper”. In determining what is “proper”, the s 75 matters of consideration that will be taken into account can include some of the following:

·         the age and state of health of each party;

·         the income, property and financial resources of each of the parties and the physical and mental capacity of each party for appropriate gainful employment;

·         whether either party has the care and control of a child of the marriage who has not attained the age of 18 years.

It should be reiterated, that the matters to be considered are not exhaustive and the aforementioned list is just a very brief overview of the considerations the court will take into account when making a spousal order, and may also further include:

·         obligations to others;

·         past circumstances in regards to the marriage;

·         conduct and fault in maintenance proceedings.

There are many things in life that have the potential to impede with harmonious family relations, and arguably, one of the biggest issues that may interfere with the well being of a marriage, or family unit, may be issues related to trusts. Broadly speaking, trusts that interfere with the sanctity of a marriage (or family relationships) will be viewed as void by the courts. Conversely, although trusts that interfere with the sanctity of a marriage or familial relationships may be seen as void by the courts, case law has not always been as straightforward as we may assume in this respect, and there are many caveats that need to be taken into account when analysing trusts that may disturb the health of a marriage or family.

What type of trusts may be void for interfering with a marriage?

Restating the earlier point, trusts that are created which disturb the welfare of a marriage will usually be considered as void. However, case law can be seen in some regards as inconsistent in the application of voiding trusts that impede with the sanctity of a marriage or family relations.

Trusts that require a person to separate from their spouse in order to receive a benefit for example, have for the most part been considered void, due to the fact that it may encourage a beneficiary to initiate an action of divorce from their spouse. However, the High Court in Ramsay v Trustee Executors and Agency Co Ltd arguably took a different approach, and upheld testator’s wish that his son will be entitled to the trust estate if he is no longer married to his spouse – with the Court ruling that this stipulation did not offend public policy.

Furthermore, recent rulings have also followed the approach of the High Court in Ramsay, which makes the principle rather interesting to say the least.

Public policy considerations

In regards to public policy considerations, the law generally views clauses that require forfeiture of a life estate as an antithesis to public policy. But in contrast, trusts that places a reliance on the beneficiary to marry to receive a trust, has been upheld as valid by the courts.

Furthermore, public policy dictates that any trust which is constructed in a manner that would result in the separation between a parent and a child will be void. Interestingly, clauses that define how a child should be raised – such as in relation to their religious upbringing – may not necessarily be considered as void by the courts under certain circumstances. 

The courts will generally try to balance public policy considerations when deciding whether or not a trust is void, because it may disturb the wellbeing of a marriage as well as fulfilling the wishes of the person to dispose their property as they see fit.

So as you can see, there are many factors that need to be taken into account before the courts will decide to consider a trust void.