DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
19 FAMILY LAW
WINTER SESSION 2016
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
September 2016 Examination
Texts and Materials
Lecture Program
Weekend Schools 1 and 2
Prescribed Topics and Course Outline
Compulsory Assignment
Assignment Questions
Sample Examination Question
1
1
1-2
2
3
4
5
6-25
25
25
26-27
1
LAW EXTENSION COMMITTEE
WINTER 2016
19 FAMILY LAW
COURSE DESCRIPTION AND OBJECTIVES
This course is designed to provide students with a general, yet comprehensive, introduction to family
law in Australia. The course covers six main areas:
(a)
(b)
(c)
(d)
(e)
(f)
the historical and current development of family law, including constitutional and
jurisdictional issues; and principal relief (nullity and divorce) (Topics 1 – 4);
dispute resolution in family law (Topic 5);
violence and family law (Topic 6);
children and parental responsibility (Topic 7);
property settlement and injunctions (Topic 8); and
spousal maintenance and child support (Topics 9 and 10).
In addition to the statutory and general law principles, emphasis is given to the practical and social
policy issues in each of these areas, including the impact of family violence and the growing
awareness of children's rights.
LECTURERS
Ms Andrea Cotter-Moroz, LLB (Hons) (UTS), Grad Dip (Leg Prac) (UTS), M.Ed (Adult) (UTS)
Andrea Cotter-Moroz is a practising barrister at the NSW Bar. She was called to the Bar in August
1992. She has a broad range of experience, appearing in all civil courts, within both the state and
federal court systems. Her main areas of practice involve appearances for parties in disputes arising
from inter-personal relationships, especially in the Family Court of Australia and the Equity Division of
the Supreme Court of New South Wales.
As a family law practitioner, Andrea appears, not only on behalf of parties to a marriage or parents, but
also on behalf of third parties and children. Her equity practice includes appearances for parties in de
facto relationships; parties seeking/contesting provision under a will; and on behalf of trustees and
beneficiaries seeking relief.
Andrea has a special interest in alternative dispute resolution. She is an Accredited Family Law
Arbitrator and a Registered Family Dispute Resolution Practitioner. She is a Nationally Accredited
Mediator and is on the panel of Mediators for the referral of Supreme and District Court matters and is
a Local Court Arbitrator.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
2
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be included in the Revising Examiner’s review. The final examination mark is
determined in accordance with this review. Assignment marks will not otherwise be reviewed.
SEPTEMBER 2016 EXAMINATION
Candidates will be expected to have a detailed knowledge of the prescribed topics:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Historical Background and Constitutional Factors;
Marriage and De Facto Relationships;
Nullity;
Divorce;
Dispute Resolution in Family Law;
Violence and Family Law;
Children and the Family Law Act 1975;
Property under the Family Law Act 1975 and the Property (Relationships) Act 1984 (NSW);
Maintenance; and
Child Support.
Candidates will be expected to have made a study of the prescribed materials in relation to these
topics, and to have analysed cases contained in the Law Extension Committee's course outline.
Please direct all enquiries in relation to examinations to the Legal Profession Admission Board.
3
TEXTS AND MATERIALS
For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on
purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016
will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the
prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with
that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.
Course Materials


Supplementary Materials in Family Law (available via the link to the Law Library in the Course
Materials section of the LEC Webcampus)
Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Statutes







Family Law Act 1975 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Marriage Act 1961 (Cth)
Property (Relationships) Act 1984 (NSW)
Crimes Domestic and Personal Violence Act 2007 (NSW)
Family Law Amendment (De Facto Financial Matters And Other Measures) Act 2008 (Cth)
Texts


Alexandra Harland et al, Family Law Principles, 2nd edition, Thomson Reuters, 2015 (Chapter
references in this subject guide are currently to the first edition and will be updated by Ms
Cotter-Moroz.)
Patrick Parkinson, Australian Family Law In Context Commentary and Materials, 6th ed. Thomson
Reuters, 2014
Reference Materials











Monahan and Young, Family Law in Australia, 8th ed. LexisNexis, 2013
Belinda Fehlberg and Juliet Behrens Australian Family Law: The Contemporary Context Oxford
University Press, Melbourne, 2008
Belinda Fehlberg and Juliet Behrens Australian Family Law: The Contemporary Context Teaching
Materials Oxford University Press, Melbourne, 2009
Monahan and Young, Children and the Law in Australia, LexisNexis, 2008
Holmes, Duncan, Family Law Case Summaries, LexisNexis, 5th edition 2011
Dickey, Family Law, 6th ed. Thomson Reuters, 2013
Mills and Ebejer, Focus: Family Law, 9th ed. LexisNexis, 2014
Monahan and Hyams, LBC Nutshell: Family Law, 3rd ed. Thomson Reuters, 2007 (or early 2008)
Fisher and Brandon, Mediating with Families, 3rd ed. Thomson Reuters, 2012
Altobelli and Serisier, Practising Family Law, LexisNexis 2011
Livermore, The Family Law Handbook, 3rd ed. Thomson Reuters, 2012
Case Reports in Family Law


Australian Family Law Cases (CCH), cited, e.g. [2007] FLC 94-000
Family Law Reports (LexisNexis), cited, e.g. (2007) 34 Fam LR 100
LEC Webcampus
Once you have registered online with the LEC, you will have full access to all the facilities on the LEC
Webcampus including links to relevant cases and legislation in the Course Materials section.
4
LECTURE PROGRAM
Lectures in Family Law will be held on Wednesdays from 6.00pm until 9.00pm. In the first half of the
semester they will be held in New Law School Learning Studio 030 (New LSLS 030). Lecture venues
for the second half of the semester have yet to be confirmed. A map of the University of Sydney’s
main campus showing the location of lecture venues is included on page 52 of the Course Information
Handbook.
Please note that this program is a general guide and may be varied according to need. Readings are
suggested to introduce you to the material to be covered in the lecture, to enhance your understanding
of the topic, and to encourage further reading. You should not rely on them alone.
Where (PP) appears after a case name this indicates that the case is referred to in Patrick Parkinson’s
text.
Unless indicated otherwise, references to sections in the course outline are sections in the Family Law
Act.
Please note recording of lectures is not permitted unless there are exceptional circumstances. If you
believe you have exceptional circumstances you must approach the individual lecturers before the
lecture begins.
LECTURE
TOPIC
KEY READING
1
11 May
2
18 May
3
25 May
VENUE
New LSLS 030
Topics 1 and 2
New LSLS 030
Topics 3 and 4
New LSLS 030
Topic 5
4
1 Jun
5
8 Jun
6
15 Jun
New LSLS 030
Topic 6
New LSLS 030
Topic 7
New LSLS 030
Topic 7
Harland, Chapters 1 – 2
Parkinson, Chapters 3, 5 & 7
Harland, Chapter 3
Parkinson, Chapters 10 & 11
Harland, Chapters 4 – 5, 9.310 –
9.380
Parkinson, Chapters 8 & 9
Harland, Chapters 6, 10
Parkinson, Chapter 6
Harland, Chapters 7 – 9, 11, 17.20
Parkinson, Chapters 20-24
Harland, Chapters 7 – 9, 11, 17.20
Parkinson, Chapters 20-24
Study Break: Saturday 18 June – Sunday 3 July 2016
7
6 Jul
8
13 Jul
9
20 Jul
10
27 Jul
11
3 Aug
TBA
Topic 7
TBA
Topic 8
TBA
Topic 8
TBA
Topic 8
TBA
Topic 9
Topic 10
12
10 Aug
TBA
Topic 10
Revision (if time
allows)
Harland, Chapters 7 – 9, 11, 17.20
Parkinson, Chapters 20-24
Harland, Chapters 12 – 14
Parkinson, Chapters 16-19
Harland, Chapters 12 – 14
Parkinson, Chapters 16-19
Harland, Chapters 12 – 14
Parkinson, Chapters 16-19
Harland, Chapters 15 – 16
Parkinson, Chapters 12 & 14
Harland, Chapter 16
Parkinson, Chapter 13
5
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Lecture students may attend but
should be aware that weekend school classes aim to cover the same material provided in weekly
lectures and are primarily for the assistance of external students.
Please note that it may not be possible to cover the entire course at the weekend schools. These
programs are a general guide, and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic,
and to encourage further reading. You should not rely on them alone.
Weekend School 1
TIME
MAJOR TOPICS KEY READING
Saturday 28 May 2015: 8.00am – noon in New Law School Seminar Room 020 (New
LSSR 020)
8.00am-9.30am
Topics 1 and 2
Harland, Chapters 1 – 2
Parkinson, Chapters 3, 5 & 7
9.40am-10.40am
Topics 3 and 4
Harland, Chapter 3
Parkinson, Chapters 10 & 11
10.45am-11.45am
Topic 5
Harland, Chapters 4 – 5, 9.310 – 9.380
Parkinson, Chapters 8 & 9
Sunday 29 May 2015: noon – 4.00pm in New Law School Seminar Room 020 (New
LSSR 020)
12.15pm-1.40pm
Topic 6
Harland, Chapters 6, 10
Parkinson, Chapter 6
1.50pm-2.50pm
Topic 7
Harland, Chapters 7 – 9, 11, 17.20
Parkinson, Chapters 20 – 24
2.55pm-3.55pm
Topic 7
Harland, Chapters 7 – 9, 11, 17.20
Parkinson, Chapters 20 – 24
Weekend School 2
TIME
MAJOR TOPICS KEY READING
Saturday 23 July 2016: 8.00am – noon in New Law School Seminar Room 020 (New
LSSR 020)
8.00am-9.30am
Topic 7
Harland, Chapters 7 – 9, 11, 17.20
Parkinson, Chapters 20 – 24
9.40am-10.40am
Topic 8
Harland, Chapters 12 – 14
Parkinson, Chapters 16 – 19
10.45am-11.45am
Topic 8
Harland, Chapters 12 – 14
Parkinson, Chapters 16 – 19
Sunday 24 July 2016: noon – 4.00pm in New Law School Seminar Room 020 (New
LSSR 020)
12.15pm-1.40pm
Topic 8
1.50pm-2.50pm
Topic 9
2.55pm-3.55pm
Topic 10
Harland, Chapters 12 – 14
Parkinson, Chapters 16 – 19
Harland, Chapters 15 – 16
Parkinson, Chapter 12 &14
Harland, Chapter 16
Parkinson, Chapter 13
6
PRESCRIBED TOPICS AND COURSE OUTLINE
1.
HISTORICAL BACKGROUND AND CONSTITUTIONAL FACTORS
Harland, Chapters 1 – 2
Parkinson, Chapters 3, 5 & 7
Monahan/Young, Chapters 1 and 4
Issues:
In this topic we consider the historical background to our current family laws, the different federal and
state laws which are applicable and the ambit of the current Family Law Act 1975 (Cth).
Structure:
(1)
(a)
(b)
(c)
(d)
(e)
What is a family?
Defining a family
Illegitimacy
Equality of status legislation
Same sex marriages
Same sex families
(2) An Historical Introduction
(3) Federal and State Powers in Family Law
(a)
(b)
(c)
(d)
Federal powers: ss 51 (xxi), 51 (xxii) Australian Constitution
A-G (Vic) v The Commonwealth (1962) 107 CLR 529 (PP)
Russell v Russell; Farrelly v Farrelly (1976) 134 CLR 495 (PP)
Lansell v Lansell (1964) 110 CLR 353 (PP)
State and territory powers
State referral of powers over children: Commonwealth Powers (Family Law – Children) Act 1986
(NSW)
State referral of powers over de facto financial matters: Commonwealth Powers (De Facto
Relationships) Act 2003 (NSW)
P v P (1994) 181 CLR 583 (PP)
(4)
The Family Law Act 1975
(a)
(b)
Family Court of Australia: Part IV. Part V
Federal Magistrates Court and Federal Magistrates Act 1999 (Cth)
Vibbard & Garcia [2012] FamCAFC 114
Courts of summary jurisdiction
Matrimonial cause: s 4(1)
Harris v Caladine [1991] FLC 92-217 (PP)
De facto financial cause: s 4(1)
Jurisdiction in matrimonial causes: Part V,
Principle to be applied by the courts: s 43
Jurisdiction in children's matters: Part VII, s69E, 69H
(c)
(d)
(e)
(f)
(g)
(h)
(5)
Cross-vesting and accrued jurisdiction: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
(NSW) and Federal Courts (State Jurisdiction) Act 1999 (NSW)
Re Wakim; Ex parte McNally (1999) 198 CLR 511 (PP)
Warby and Warby [2002] FLC 93-091 (PP)
Valceski (2007) FLC 93-312
Ruane & Bachmann-Ruane & Ors (Accrued Jurisdiction) [2012] FamCAFC 369
7
(6)
Time limits
(7)
Appellate jurisdiction
(8)
Jurisdiction in divorce proceedings
(9)
Welfare jurisdiction
Desired Outcomes:
An appreciation of the role played by ecclesiastical law in the formation of our current family laws and
the constitutional restraints imposed on the powers of the Family Court of Australia by the Australian
Constitution. A general understanding of the Family Law Act 1975 (Cth) and the jurisdictional factors
relevant to the litigation of family law disputes.
2.
MARRIAGE AND DE FACTO RELATIONSHIPS
Harland, Chapter 3
Parkinson, Chapter 10
Monahan/Young, Chapter 5
Issues:
In this topic we consider the matters relevant to the formation of both de jure relationships (marriages)
and de facto relationships.
Structure:
(1)
Marriage
(a)
Recognition of foreign marriages: Part V Marriage Act 1961, s 88C
(b)
Formalities of marriages in Australia: Marriage Act 1961, ss 42, 44, 45, 46, 48, 50
(c)
Validity of marriage: s 113
Ex Parte Willis [1997] FLC 92-725 (PP)
In the Marriage of Rewal (1991) FLC 92-225
W v T [1998] FLC 92-808
In Re Kevin (Validity of Marriage of Transsexual) [2001] FLC 93-087 (PP)
Attorney-General for the Commonwealth and “Kevin” and “Jennifer” and the Human Rights and
Equal Opportunities Commission [2003] FLC 93-127 (PP)
(2)
De facto relationships
Statutory definition of “de facto relationship” – s 4AA Family Law Act 1975 (Cth) and s 4(2) Property
(Relationships) Act 1984 (NSW)
Declarations: s 90RD Family Law Act 1975 (Cth)
Roy v Sturgeon [1986] 11 Fam LR 271
Delany v Burgess [2007] NSWCA 360
Desired Outcomes:
An appreciation and understanding of the laws relevant to the formation of both de jure and de facto
relationships. In particular, an understanding of the operation of the Marriage Act 1961 (Cth) and de
facto relationships under the Property (Relationships) Act 1984 (NSW) and Family Law Act 1975
(Cth).
8
3.
NULLITY
Harland, Chapter 3
Parkinson, Chapter 10
Monahan/Young, Chapter 6
Issues:
In this topic, we consider the sole ground for nullity of marriage under the Family Law Act 1975 (Cth) void marriage. In doing so, we consider relevant factors set out in the Marriage Act 1961 (Cth). In
addition, we also consider the broader requirements for a nullity application in the Family Court of
Australia.
Structure:
(1)
Nullity of marriage: s 51 Family Law Act 1975
(2)
Void marriages: Part III Marriage Act 1961
(a)
Grounds: s 23B Marriage Act 1961
(b)
Bigamy: s 94 Marriage Act
Brokenshire and Rogers [2008] Fam CA 680
(c)
Consent
Babich v Sokur and Anor [2007] Fam CA 236
(d)
Duress
In the Marriage of S (1980) 5 Fam LR 831
Teves and Campomeyer (1995) 18 Fam LR 844
Nagri & Chapal [2012] FamCA 464
(e)
Fraud
Deniz and Deniz [1977] FLC 90-252 (PP)
Otway and Otway [1987] FLC 91-807 (PP)
In the marriage of Osman and Mourrali [1990] FLC 92-111 (PP)
In the Marriage of Hosking (1995) FLC 92-579 (PP)
Zoumaris & Paradisio [2008] FamCA 688 (PP)
(f)
Mistake
Najjarin v Houlayce [1991] FLC 92-246
(g)
Age
(h)
Sex
In Re Kevin (Validity of Marriage of Transsexual) [2001] FLC 93-087 (PP)
Attorney-General for the Commonwealth and “Kevin” and “Jennifer” and the Human Rights and
Equal Opportunities Commission [2003] FLC 93-127 (PP)
(i)
Prohibited relationship
Desired Outcomes:
An appreciation and understanding of the concept of annulment of marriage and the factors
amounting to a void marriage as set out in the Marriage Act 1961 (Cth). In addition, an understanding
of the relevant case law flowing from the statutory concepts.
9
4.
DIVORCE
Harland, Chapter 3
Parkinson, Chapter 11
Monahan/Young, Chapter 6
Issues:
In this topic, we consider the sole ground for divorce under the Family Law Act 1975 (Cth) –
irretrievable breakdown of marriage. In addition, we also consider the broader requirements for a
divorce application in the Family Court of Australia.
Structure:
(1)
Irretrievable breakdown of marriage: s 48
(2)
Meaning of separation
Jennings and Jennings (1997) FLC 92-773
Price and Underwood [2008] Fam CAFC 46 (PP)
(3)
Separation under the one roof: s 49(2)
Pavey and Pavey [1976] FLC 90-051 (PP)
(4)
Resumption of cohabitation: s 50
In the Marriage of Spanos [1980] FLC 90-871 (PP)
(5)
Marriages of less than two years: s 44(1B)
(6)
When divorce takes effect: s 55
(7)
Arrangements for children: s 55A
Maunder v Maunder [1999] FLC 92-871 (PP)
(8)
Rescission of divorce order possible before divorce order takes effect: ss 57, 58
(9)
Party may marry again after divorce order has taken effect
Todd and Todd (No 2) [1976] FLC 90-008 (PP)
Lane and Lane [1976] FLC 90-055 (PP)
Falk and Falk [1977] FLC 90-247 (PP)
In the Marriage of Evans [1990] FLC 92-150 (PP)
Desired Outcomes:
An appreciation and understanding of the concept of irretrievable breakdown of marriage and the
factors amounting to a separation or a resumption of cohabitation. In addition, an understanding of
the importance placed upon the parties making satisfactory arrangements for their children as a prerequisite for a decree nisi for dissolution of marriage becoming absolute.
10
5.
DISPUTE RESOLUTION IN FAMILY LAW
Harland, Chapters 4 – 5, 9.310 – 9.380
Parkinson, Chapter 8
Monahan/Young, Chapter 2
Issues:
Since its commencement the Family Law Act has facilitated and encouraged parties to resolve their
disputes without resorting to adjudication. In this topic, we examine the development and use of
various alternative dispute resolution processes in family law matters and the less adversarial trial
process.
Structure:
(1)
Range of family dispute resolution processes
Flora & Flora [2012] FamCA 493
(2)
Dispute resolutions processes available outside the court system
(3)
Dispute resolution processes available inside the court system
(4)
General statutory obligations
(5)
Dispute resolution obligations in parenting cases
(a)
(b)
(c)
General requirements
When FDR certificates are not required
Types of certificates that can be issued
(6)
Dispute resolution obligations in financial cases
(7)
Obligations of lawyers
(8)
Child related proceedings - less adversarial trial in parenting cases
Desired Outcomes:
An appreciation and understanding of the statutory requirements in relation to pre-action procedures
in property cases; attendance at family dispute resolution before applying for a parenting order;
availability of consensual arbitration in financial matters; and the less adversarial trial process in
parenting cases.
6.
VIOLENCE AND FAMILY LAW
Harland, Chapters 6, 10
Parkinson, Chapter 6
Monahan/Young, Chapter 3
Dr Tom Altobelli, Family Violence and Parenting: Future Directions in Practice, 11 th Australian Family
Lawyers Conference Fiji 5 – 9 June 2009 (see link to article in Notes section online)
Family Violence Best Practice Principles
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Law+Courts+pu
blications/fv_best_practice_for_flc
Family Violence Reviews
 Chisholm family violence report:
http://www.ema.gov.au/www/agd/agd.nsf/Page/FamilyLawCouncil_Publications_Reportst
otheAttorney-General_FamilyViolenceReport
 Law Reform Commission Family Violence Summary Report
http://www.lawlink.nsw.gov.au/lrc.nsf/pages/digest.125
11
Amendments made by Family Law Legislation Amendment (Family Violence and Other Measures)
Act 2012 – effective from 7 June 2012 (“family violence amendments”)
Issues:
In this topic, we explore issues of family violence. We also examine the available remedies under the
Family Law Act and the Crimes Domestic and Personal Violence Act.
Structure:
(1)
Nature of family violence
(a)
(b)
Terminology
Forms of violence
(2)
Impact of family violence on lives
(3)
Legal responses
Apprehended domestic violence orders under the Crimes Domestic and Personal Violence Act 2007
(NSW)
Family Law Act
In the Marriage of JG and BG [1995] FLC 92-515
Patsalou and Patsalou [1995] FLC 92-580
In the Marriage of Jaeger (1994) FLC 92-492
T and N (2003) FLC 93-172
Nawaqualiva v Marshall [2006] FLC 93-296
Maluka & Maluka [2009] Fam CA 647; Maluka [2011] FamCAFC 72
Amador & Amador [2009] Fam CAFC 196
(4)
Injunctions – s 68B, s 114
(5)
The interaction of the Family Law Act and State provisions
Div 11, ss 68N-68T of FLA
Desired Outcomes:
An appreciation and understanding of the statutory requirements in relation to personal protection and
restraining orders under the Family Law Act 1975 (Cth), the Property (Relationships) Act 1984 (NSW)
and the Crimes Domestic and Personal Violence Act 2007 (NSW).
7.
CHILDREN AND THE FAMILY LAW ACT 1975
Harland, Chapters 7 – 9, 11, 17.20
Parkinson, Chapters 20-24
Monahan/Young, Chapters 7 - 9
Monahan/Young, Children and the Law in Australia, Chapter 16
Issues:
In this topic we consider the broad provisions of Part VII of the Family Law Act 1975 (Cth) in relation
to children from marriage and non-marriage relationships. In doing so, we consider the concepts of
children’s rights (in particular the UN Convention on the Rights of the Child), parental responsibility
and parental powers and ability of a court exercising jurisdiction under the Act to adjust aspects of
parental responsibility.
12
(1)
Parenthood
(a) Establishing parentage
a.
establishing the parentage of children
b.
parentage evidence
McK and Kv O (2001) FLC 93-089
G v H (1994) 181 CLR 387 (reference made to Bringinshaw v Bringinshaw (1938) 60 CLR 336)
(PP)
TNL and CYT [2005] Fam CA 77 (PP)
Tryon v Cluterback [2009] Fam CAFC 176
Brianna & Brianna [2010] FamCAFC 97
Beck and Anor & Whitby & Anor [2012] FamCA 129
(2)
Parental responsibility
(a) Nature and scope
FLA s 61C, s 4
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 (PP)
Secretary, Dep. of Health and Community Services v JWB and SMB (Re Marion) [1992] FLC 92293
(b) Welfare powers
DOCS v Y [1999] NSWSC 644
Secretary, Department of Health and Community Services v JWB and SMB (Re Marion) (1992)
FLC 92-293
Re Alex: Hormonal treatment for gender identity dysphoria [2004] FLC 93-175
(c) Sharing of parental responsibility
s 65DAC, s 65DAE
(d) Presumption about equal shared parental responsibility
H and H [2007] Fam CA 27 (PP)
Chappell and Chappell [2008] Fam CAFC 143 (Parental responsibility)
(e) Parental responsibility in interim proceedings
Marvel and Marvel [2010] FamCA 240
(3)
Artificial conception
s 14 Status of Children Act (NSW)
s 60H Family Law Act
Re Mark: An Application relating to Parental Responsibilities [2003] FLC 93-173
Aldridge v Keaton [2009] Fam CAFC 229
(4) Surrogacy
s 60HB Family Law Act
Re Evelyn [1998] FLC 92-807; [1998] FLC 92-817
Re Michael: Surrogacy Arrangements [2009] Fam CA 6
Ellison & Anor & Kamchanit [2012] FamCA
(5)
Brief history of parenting provisions
(6)
Objects: s 60B (note the new object – subsection (4) – added by family violence amendments
effective from 7 June 2012)
(7)
Paramountcy principle: s 60CA
13
(8)
Parenting plans:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Parents encouraged to reach agreement: s63B
Meaning of parenting plan & related terms: s 63C
Effect of a child support provision in a parenting plan: s 63CAA
Variation of parenting plan: s 63D
Obligations of advisers (includes lawyers): S 63DA
Effect of parenting plan when court making parenting order: s65DAB
Parenting orders subject to later parenting plans: s64D
Roux & Herman [2010] FMCAfam 1369
(9)
Parenting orders
(a) Meaning of parenting order and related terms – s 64B
(b) Who may apply? s 65C
(c) Court’s powers s65D
(10) Parental responsibility
(a)
(b)
(c)
(d)
Meaning of parental responsibility :s 61B
Default position is each parent has parental responsibility ( subject to court orders): 61C
Effect of court orders on parental responsibility: s61D
Application of presumption of equal shared parental responsibility and factors the court must
consider: s61DA
Mazurka & Mazurka [2011 FamCAFC 68
(e) Effect of application of presumption on time: s 65DAA
MRR v GR (2010) FLC 93-424 High Court
(11) Decision-making process in light of the 2006 reform
Goode v Goode [2006] FLC 93-286 (PP)
Escott v Lowe [2007] Fam CA 307 – example of a trial judge working through the steps
MRR v GR (2010) FLC 93-424 High Court
Marvel & Marvel [2010] FamCAFC 101
(12) Determining what is in a child’s best interests: s 60CC
Primary considerations: s60CC(2)
(a) Meaningful relationship: s60CC(2)(a)
Mazorski v Albright [2008] 37 Fam LR 518
MccCall v Clark (2009) FLC 93-405
Champness & Hanson [2009] FamCAFC 96
(b) Protection from harm, abuse, neglect, family violence: s60CC(2)(b)
(Note new and expanded definitions apply to all matters commenced from 7 June 2012; see
s 4AB and definition of “abuse” in s 4(1).)
(c) Greater weight to be given to 2(b): s 60CC(2A)
Additional considerations: s 60CC(3)
(a) Views of the child: s 60CC(3)(a)
R and R: Children’s Wishes (2000) 25 Fam LR 712
Dylan and Dylan [2007] FamCa 842
ZN and YH and the Separate Representative [2002] FLC 93-101
14
Note:
The Family Law Act makes provision to ensure that where appropriate the views of the child
are placed before the court: s 60CD.
But child not to be required to express his/her views: s60CE
(b) Nature of the relationship of the child with parents and other persons: s 60CC(3)(b)
Gronow and Gronow [1979] FLC 90-716
Rice v Miller (1993) FLC 92-415
(c) Extent of each parent’s participation in decision making, spending time with and
communicating with child: s 60CC(3)(c)
(d) Extent of each parent’s fulfilled obligation to maintain child: s 60CC(3)(ca)
(e) Likely effect of any change in child’s circumstances including effect of separation from
parents, other child, grandparents or other person with whom child has been living:
s60CC(3)(d)
(f)
Practical difficulty and expense of child spending time/communicating with a parent and
whether this will affect child’s right to maintain personal relations and direct contact with
parents on a regular basis: s60CC(3)(e)
(g) Capacity for each parent and any other person to provide for the needs of the child,
including emotional and intellectual needs : s 60CC(3)(f)
(h) Maturity, sex, lifestyle and background of the child and either parent any other
characteristics of the child : 60CC(3)(g)
Conduct
Unconventional lifestyle
Horman and Horman (1976) FLC 90-024
Sexual orientation of parents
L and L [1983] FLC 91-353 (PP)
A v J (1995) FLC 92-619
Aldridge v Keaton [2009] Fam CAFC 229
Religion
Paisio and Paisio [1979] FLC 90-659
Firth and Firth [1988] FLC 91-971
Elspeth & Peter [2006] Fam CA 1385
Peter & Elspeth [2009] Fam CA 551
(i)
Children of Aboriginal and Torres Strait Islander descent: ss 60CC(3)(h) and s 60CC(6)
B and R and the Separate Representative [1995] FLC 92-636 (PP)
Re CP [1997] FLC 92-741(PP)
15
M and L (Aboriginal Culture) (2007) FLC 93-320
Beck & Anor & Whitley & Anor [2012] FamCA 129
(j)
Each parent’s attitude to the child and responsibilities of parenthood: s60CC(3)(i)
(k) Court’s consideration of any family violence order which applies/applied to child or member
of child’s family: s 60 CC(3)(k)
Note: new and expanded definitions of family violence etc applicable from 7 June 2012
(l)
Orders least likely to lead to further proceedings: s 60 CC(3)(l)
(m) Catchall any other fact or circumstance: s 60CC(3)(m)
Non-parent
Mulvany v Lane (2009) 41 Fam LR 418
(13) Independent legal representation of children: s 68L
Re K [1994] FLC 92-461 (PP)
DS v DS (2003) FLC 93-172
(14) Family Consultants
Functions of a family consultant: s 11A
Who are family consultants?: s 11B
Court can order report by family consultant: s 62G
(15) Orders to locate and recover missing children and prevent abduction
(16) Relocation disputes
U v U [2002] FLC 93-112 (PP)
M v S (2006) 37 Fam LR 32
Sampson and Hartnett (No. 10) [2007] Fam CA 1367, (2007) FLC 93-350, (2008) 38 Fam LR
315
McCall & Clark [2009] Fam CAFC 92
Hepburn v Noble [2010] Fam CAFC 111
Malcolm & Monroe & Anor [2011] FamCAFC 16
Lorreck & Watts [2012] FamCA 75
(17) International child abduction
RCB as litigation guardian of EKV, CEV, CIV ad LRV v The Honourable Justice Colin James
Forrest [2012] HCA 47 (the Italian children case)
HBH v Director-General; Department of Child Safety [2006] FAMCA 1053
LK v Director-General, Department of Community Services (2008) 39 FAM LR 1
Director-General; Department of Community Services and Crowe (1996) FLC 92-717
DP v Cth Central Authority; JLM v Director-General, NSW Dep. of Community Services [2001]
FLC 93-081 (PP)
De L v Director General, NSW Dep. of Community Services [1996] FLC 92-706; [1997] FLC 92744 (PP)
Garning & Department of Communities (Child safety Services) [2012 FamCAFC 35
State Central Authority & Camden [2012] FamCAFC 45
State Central Authority & Wageman & Anor [2012] FamCAFC
Director General, Department of Family and Community Services & Svoboda [2012] FamCA 998
16
(18) Alteration and termination of Parenting Orders
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363
(19) Injunctions: s 68B
Chapman and Palmer [1978] FLC 90-510
Skrabl and Leach [1989] FLC 92-016
Mahoney and McKenzie [1993] FLC 92-408
Fooks and McCarthy [1993] FLC 92-450
Flanagan and Handcock [2001] FLC 93-074; Handcock and Flanagan [2002] FLC 92-102
Koldsjor & Addington [2009] Fam CAFC 21
Maluka and Maluka [2009] Fam CA 647
(20) Contravention of parenting orders
Wright & Adams [2012] FamCA 440
(21) Child abuse
Note: requirement to file notice of child abuse: s 67Z
M v M (1988) 166 CLR 69 (reference made to Briginshaw v Briginshaw (1938) 60 CLR 336))
(PP)
Re David [1997] FLC 92-776 (PP)
Partington v Cade (No. 2) [2009] Fam CAFC 230
(22) Overseas travel
(23) Social science and family law
Maluka and Maluka [2011] FamCAFC 211
Olmos & Urrea/Oaks & Udall [2011] FamCAFC 211
McGregor v McGregor [2012] FamCAFC 69
(24) Division 12A - Evidence
Kahil & Tahir-Ahmadi [2012] FamCAFC 68
Department of Family and Community Services & Jordan & Ors [2012] FamCAFC 147
Desired Outcomes:
An appreciation and understanding of the concept of parental responsibility and the ability of a court
(exercising jurisdiction under the Act) to make parenting orders, and, where appropriate, welfare
orders, location and recovery orders. Overall, an understanding of the best interests of the child
principle which is the paramount concern (and the statutory factors to be considered).
17
8.
PROPERTY SETTLEMENT AND INJUNCTIONS UNDER THE FAMILY LAW ACT 1975 &
PROPERTY (RELATIONSHIPS) ACT 1984
Harland, Chapters 12 – 14
Parkinson, Chapters 16-19
Monahan/Young, Chapters 12 – 15
Issues:
In this topic we consider the provisions in the Family Law Act 1975 (Cth) and the Property
(Relationships) Act 1984 (NSW) in relation to the power of the court to effect a property settlement
and the ability of parties to enter into private financial agreements. We also consider the relevant
statutory provisions regulating the power of the court to grant injunctive relief. In doing so, we
consider the relevant statutory requirements and how these factors have been interpreted by courts.
Structure:
A.
Property under the Family Law Act 1975 (Cth)
(1)
Declarations of interests in property: s 78; s 90SL
Hickey and Hickey and the A-G for the Commonwealth of Australia (Intervenor) [2003] FLC
93-143 (PP)
(2)
Requirement of full financial disclosure
Black and Kellner [1992] FLC 92-287 (PP)
Weir v Weir [1993] FLC 92-338 (PP)
(3)(a)
General approach to be taken by court post-Stanford
The recent High Court decision in Stanford has not yet been considered by the Full Court.
The general approach of the family law courts at first instance appears to follow the preStanford 4 step approach, except that the “just and equitable” requirement is being
considered at step 2, and sometimes again as the final step and sometimes not considered
again. For this reason (and until the position is clarified by the Full Court), the structure
subject guide is aligned with the pre-Stanford preferred 4 step approach and the
implications of Stanford on this approach will be examined.
Stanford v Stanford [2012] HCA 52
Martin v Crawley [2012] FamCA 1032
Bradley & Bradley [2012] FCWA 125 (currently on appeal to Full Court)
Erdem & Ozsoy [2012] FMCAfam 1323
(3)(b)
General 4 step approach to be taken by court pre-Stanford
Hickey and Hickey and the A-G for the Commonwealth of Australia (Intervenor) [2003] FLC
93-143 (PP)
Amero v Croft [2010] Fam CAFC 118
(4)
Step 1 – Identifying and valuing property
(i)
What is property?: definition in s 4(1)
Duff and Duff [1977] FLC 90-217 (PP)
Best and Best [1993] FLC 92-418 (PP)
Trustee of the Property of G Lemnos, A Bankrupt & Lemos & Anor [2009] Fam CAFC 20
Coghlan and Coghlan [2005] FLC 93-220 (PP)
Sand & Sand [2012] FamCAFC 179
Sand & Sand (No 2) [2012] FamCAFC 216
(ii)
What about post separation property?
18
Norman & Norman [2010] FamCAFC 66
(iii)
What is a financial resource?
Kelly and Kelly (No 2) (1981) FLC 91-108
Gould and Gould (1996) FLC 92-657
(iv)
Trusts
Kennon v Spry [2008] HCA 56 (PP)
(v)
Moral obligation to use funds in a certain way
Martin & Newtown [2011] FamCAFC 233
(vi)
Treatment of debts
Biltoft and Biltoft (1995) 19 Fam LR 82
Esposito & Coster [2012] FamCAFC 118
Simpson & Simpson and Anor [2012] FamCA 444
(vii)
Notional property
Townsend [1995] FLC 92-569 (PP)
Farnell and Farnell (1996) FLC 92-681Chorn and Hopkins [2004] FLC 93-204
Omacini and Omacini [2005] FLC 93-218
(viii)
Valuation usually at the date of hearing using general principles of valuation in legal
proceedings
Lenehan and Lenehan [1987] FLC 91-814 (PP)
Mallett and Mallett (1984) 156 CLR 695 (PP)
(4)
Step 2 – Assessing contribution factors
(a)
Broad discretion to weigh contributions and no presumption of equality as starting point
Mallett v Mallet (1984) 156 CLR 695 (PP)
Dickons & Dickons [2012] FamCAFC 154
(b)
Non-financial contributions: s 79(4)(b); s 90SM(4)(b)
Whiteley and Whiteley [1992] 92-304 (PP)
Farmer and Bramley [2000] FLC 93-060 (PP)
Zubic v Zubic [1995] FLC 92-609 (PP)
Ferraro and Ferraro [1993] FLC 92-335 (PP)
Walters and Jurek [1995] FLC 92-635 (PP)
(c)
Financial contributions: s 79(4)(a); s 90SM(4)(a)
(i)
Initial contributions
Money and Money [1994] FLC 92-485 (PP)
Bremner and Bremner [1995] FLC 92-560 (PP)
Pierce v Pierce [1999] FLC 92-844 (PP)
Williams v Williams [2007] Fam CA 313
Cabbell and Cabbell [2009] FamCAFC 143 (PP)
Norman & Norman [2010] FamCAFC 66
(ii)
Post separation contributions
(iii)
Gifts and inheritances
19
White and Tulloch v White (1995) FLC 92-640
In the Marriage of Gosper [1987] FLC 91-818 (PP)
Kessey and Kessey [1994] FLC 92-495 (PP)
Bonnici v Bonnici [1992] FLC 92-272 (PP)
Figgins and Figgins [2002] FLC 93-122 (PP)
De Angelis and De Angelis [2003] FLC 93-133 (PP)
(iv)
Short marriages
(v)
Special contributions
Ferraro and Ferraro [1993] FLC 92-335 (PP)
McLay and McLay [1996] FLC 92-667 (PP)
Stay and Stay [1997] FLC 92-751 (PP)
JEL and DDF [2001] FLC 92-667 (PP)
(vi)
Negative contributions, Conduct & Waste
The Marriage of Soblusky (1976) FLC 90-124
Kennon and Kennon (1997) FLC 92-757
Kowaliw (1981) FLC 91-092
Polonius and York [2010] FanCAFC 228 (PP)
(vii)
Losses
Browne and Green (1999) FLC 92-873
(viii)
Global or asset by asset approach
Norbis v Norbis (1986) 161 CLR 513 (PP)
In the Marriage of Zyk [1995] FLC 92-644 (PP)
Coghlan and Coghlan [2005] FLC 93-220 (PP)
(ix)
Compensation /damages awards
Williams [1995] FLC 91-628 (PP)
Zubic v Zubic [1995] FLC 92-609 (PP)
In the Marriage of Aleksovski [1996] FLC 92-705
(x)
Windfalls
Zyk and Zyk [1995] FLC 92-644 (PP)
Farmer and Bramley [2000] FLC 93-060 (PP)
(xi) Special contributions
JEL and DDF [2001] FLC 93-075 (PP)
In the Marriage of Figgins [2002] FLC 93-112 (PP)
(4)
Step 3 – Future needs factors
(i)
Earning capacity: s 79(4)(d); s 90SM(4)(d)
Lee Steere and Lee Steere [1985] FLC 92-626 (PP)
(ii)
s 75(2) matters: s 79(4)(e); s 90SF(3)
Kelly and Kelly (No 2) [1981] FLC 91-108 (PP)
Clauson and Clauson [1995] FLC 92-595 (PP)
Walters and Jurek [1995] FLC 92-635 (PP)
Farmer and Bramley [2000] FLC 93-060 (PP)
Richardson and Richardson [2008] Fam CAFC 107 (PP)
20
Best and Best (1993) FLC 92-418
Mitchell and Mitchell (1995) FLC 92-601
GH and CTH [2005] Fam CA 734
(iii)
Other orders: s 79(4)(f); s 90SM(4)(e)
(iv)
Child support: s 79(4)(g); s 90SM(4)(f)
(4)
Step 4 – Just and equitable requirement: s 79(2); s 90SM(3)
Doherty and Doherty (2006) FLC 93-256
Cook and Langford [2008] FLC 93-347 (PP)
Teal & Teal [2010] FamCAFC 120
Wynona & Friend [2011] FamCAFC 6
Manolis and Manolis (No 2) [2011] FamCAFC 105
(5)
Property settlement where marriage still intact?
Stanford & Stanford [2011] FamCAFC 208
(6)
Finality principle: s 81
Note: ability to make partial property orders
Strahan & Strahan (Interim property orders) [2009] FamCAFC 166
Stanton & Brook [2012] FamCA 230
Panshin & Farmer [2012] FamCAFC 197
Marchant & Marchant [2012] FamCAFC 181
Levy & Prain [2012] FamCAFC 92
(7)
Superannuation
Orders under Part VIIIB – superannuation splitting order under s 90MT or flagging order
under s 90MU
Coghlan and Coghlan [2005] FLC 93-220 (PP)
Semperton & Semperton [2012] FamCAFC 132 – DFRDB pension
Palmer & Palmer [2012] FamCAFC 159
(8)
Bankruptcy
s 58 of the Bankruptcy Act 1966 (Cth)
Bankruptcy Commissioner of Taxation v Worsnop (2009) FLC 93-392
Biltoft v Biltoft (1995) FLC 92-614
Lemnos v Lemnos [2007] Fam CA 1058
(9)
Third parties
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 (PP)
Dougherty and Dougherty [1987] FLC 91-823 (PP)
Hughes-Kempe and Kempe and Bocampe Pty Ltd [2005] FLC 93-237
Hunt and Hunt [2006] Fam CA 167 (PP)
Rand and Ors and Rand [2008] Fam CAFC 50, (2008) FLC 93-370 (PP)
Baxter & Brown & Anor [2012] FamCA 100
Sand & Sand (No 2) [2012] FamCAFC 216
Byrd & Byrd and Ors [2012] FamCAFC 170
Gallieni & Gallieni & Ors [2012] FamCAFC 205
(10)
Injunctions
s 114 FLA
Davis and Davis [1976] FLC 90-062 (PP)
21
Mullane v Mullane (1983) 158 CLR 436 (PP)
Davis and Davis [1983] FLC 91-319
Waugh and Waugh [2000] FLC 93-052 (PP)
Mullen v de Bry [2006] FLC 93-293 (PP)
Blueseas Investments Pty Ltd v Mitchell and McGillivray [1999] FLC 92-856
Talbot v Talbot (1995) FLC 92-586
(11)
(a)
(b)
(c)
(d)
(e)
(f)
Binding Financial Agreements (BFAs): Part VIIIA; Part VIIIAB Div 4
BFAs before marriage/cohabitation: s 90B; s 90UB
BFAs during marriage/cohabitation: s 90C; s 90UC
BFAs after separation: s 90D; s 90UD
Formal requirements of BFAs : s 90G (1); s 90UJ(1)
Setting aside BFAs: s 90K; s 90UM
Validity, enforceability and effect of BFAs: s 90KA; s 90UN
Black and Black [2008] Fam CAFC 7, (2008) FLC 93-357
Kostres v Kostres [2009] Fam CAFC 222
Parker & Parker [2012] FamCAFC 33
Ryan & Joyce [2011] FMCAfam 225 – BFA under wrong section rectified pursuant to s 90G(1A)(c)
(12)
(a)
(b)
(c)
(d)
Varying and setting aside of orders altering property interests: s 79A; s 90SN
Miscarriage of justice: s 79A(1)(a)
Impracticability: s 79A(1)(b)
Default: s 79A(1)(c)
Change in circumstances for child: s 79A(1)(d)
Gebert and Gebert [1990] FLC 92-137 (PP)
Clifton and Stuart [1991] FLC 92-194
Suiker and Suiker [1993] FLC 92-436 (PP)
Cawthorn v Cawthorn [1998] FLC 92-805
Prior and Prior [2002] FLC 93-105
Wernham v Campagnola [2012] FamCAFC 137
Whistler & Whistler [2012] FamCAFC 97
(13) Tax
Rosati v Rosati (1998) 23 LR 288
(14) Transactions to defeat claims: s 106B (formerly s 85)
Abdullah and Abdullah [1981] FLC 91-003 (PP)
Pflugradt and Pflugradt [1981] FLC 91-052 (PP)
Gould and Gould [1993] FLC 92-434 (PP)
Kennon v Spry [2008] HCA 56 (PP)
(15) Violence and property proceedings
Kennon and Kennon (1997) FLC 92-757
B.
De Facto Relationships
(1)
General law developments
Muschinski v Dodds (1985) 160 CLR 583
Baumgartner v Baumgartner (1987) 164 CLR 137
(2)
De facto relationships under the Family Law Act
Note: Introduced into the Act by the Family Law Amendment (De Facto Financial Matters And
Other Measures) Bill 2008 (Cth)
22
Sabata & Sabata [2012] FamCA 105 (proclamation)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Multiple relationships
Relationships covered by FLA
Threshold issues
Length of relationship
Geographic connection
Time limit to file after end of relationship
Property adjustment
Maintenance
Financial agreements
Dahl & Hamblin [2011] FamCAFC 202
Benson & Owens [2011]FamCAFC 238
(3)
State and territory legislation
Desired Outcomes:
An appreciation and understanding of the requirements for property adjustment under the Family Law
Act 1975 (Cth) and under the Property (Relationships) Act 1984 (NSW) including the associated
powers of the court, including the power to grant injunctions and make orders binding third parties.
Overall, an understanding of how the court approaches the assessment of contributions made by the
parties and their future needs under the Family Law Act 1975 (Cth).
9.
MAINTENANCE
Harland, Chapters 15 – 16
Parkinson, Chapters 12 & 14
Monahan/Young, Chapter 10
Issues:
In this topic we consider the specific provisions in Part VIII of the Family Law Act 1975 (Cth) in
relation to the conditional right of spousal maintenance. By contrast we will consider the lack of a
broad right for maintenance for de facto couples.
Structure:
(1)
Spousal maintenance under the Family Law Act 1975
(a) Discretion and policy
(b) Liability for spouse maintenance
Soblusky and Soblusky [1976] FLC 90-124 (PP)
(c) Determining maintenance applications
Bevan and Bevan [1995] FLC 92-600
(d) What does adequate mean in the context of maintenance
In the Marriage of Nutting (1978) FLC 90-410
(e) Section 75(2) factors
In the Marriage of Best (1993) FLC 92-418
In the Marriage of F and F (1982) FLC 91-214
23
(f)
Maintenance from a bankrupt
(g) Urgent maintenance
Williams and Williamson (1978) FLC 90-505
Chapman and Chapman (1979) FLC 90-671
Ashton and Ashton (1982) FLC 91-285
(h) Interim maintenance orders
Kiesinger and Paget [2008] Fam CAFC 23
(i)
Final maintenance orders
Clauson and Clauson [1995] FLC 92-595
Mitchell and Mitchell [1995] FLC 92-601 (PP)
DJM v JLM [1998] FLC 92-816
Caska v Caska [1998] FLC 92-826
Vault & Isle [2012] FamCAFC 93 (s 80(2))
(j)
Section 77A orders
(k) Ceasing maintenance orders
(l)
Modification of maintenance orders
Astbury and Astbury [1978] FLC 90-494
(m) Lump sum maintenance
Vautin v Vautin [1998] FLC 92-827 (PP)
(n) Timing of maintenance orders
(2)
Maintenance for de facto couples under the Family Law Act 1975
(a)
(b)
Jurisdictional and threshold requirements
Maintenance provisions
(3)
Financial agreements
(4)
Maintenance under the Property (Relationships) Act 1984 (NSW)
Desired Outcomes:
An appreciation and understanding of the concept that spouses (in a marriage relationship) have
conditional rights and obligations to support one another financially during and following the
breakdown of their relationship. In addition, an understanding that some specific provisions also exist
in relation to the maintenance of de facto couples (in limited circumstances) and the liability of a father
of a child to contribute to the birth-related expenses of the mother in circumstances where the father
is not married to the mother.
24
10. CHILD SUPPORT
Harland, Chapter 16
Parkinson, Chapters 13
Monahan/Young, Chapter 11
www.csa.gov.au
Issues:
In this topic we consider the specific provisions in Part VII of the Family Law Act 1975 (Cth) in relation
to the primary duty of parents to support their children. In doing so, we consider the interaction of the
Act with the Child Support legislation in relation to both: the assessment, collection and enforcement
of child support payments.
A
Child support
(1)
The Child Support Scheme
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Child Support (Assessment) Act 1989
Child support formula
Income
Child Support (Registration and Collection) Act 1988
Enforcement
Departure prohibition orders
International collection
Repayments of child support wrongly paid
DRP v AJL (2004) FLC 98-022
B and M [2003] FMCAfam 113
Pedrama & Pedrama & Anor (No 2) [2012] FamCA 348
(2)
Departure applications
(3)
Social Security Tribunal
(4)
Courts applications
Gyselman and Gyselman [1992] FLC 92-279 (PP)
Bolton and Bolton [1992] FLC 92-309 (PP)
(5)
Child support agreements
B
Child maintenance under the Family Law Act 1975
(a)
(b)
Who can apply?
Orders
W and W [1980] FLC 90-872
Tuck and Tuck [1981] FLC 91-021 – discussion of the term ‘necessary’
Mee and Ferguson [1986] FLC 91-716
(c)
(d)
(e)
(f)
(g)
(h)
General powers
Specification in orders
Modification of child maintenance orders
Varying maintenance
Cessation of orders
Urgent child maintenance
(1)
Adult child maintenance
O’Dempsey and O’Dempsey [1990] FLC 92-178 (adult child maintenance)
25
Cosgrove v Cosgrove [1996] FLC 92-700; No. 2 [1996] FLC 92-701 (adult child maintenance)
Re AM (Adult Child Maintenance) (2006) FLC 93-262 (PP)
(2)
Step-parents
(3)
Child-bearing expenses
Desired Outcomes:
An appreciation and understanding of the concept that parents have the primary duty of financially
supporting their children. Overall, an understanding of the assessment, collection and enforcement of
child support payments.
COMPULSORY ASSIGNMENT
In Family Law, there is only ONE ASSIGNMENT. This assignment is compulsory and must be
submitted by all students. Students must submit the assignment by the due date. A pass
mark is 50%. Refer to the Guide to the Presentation and Submission of Assignments for the
assignment grading and assessment criteria. Students who fail to satisfy the compulsory
requirements will be notified through the Results screen on the Webcampus before the
examination period of their ineligibility to sit the examination in this subject. The maximum
word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Thursday 7 July 2016
(Week 7)
ASSIGNMENT QUESTIONS
To obtain the Family Law assignment questions for the Winter Session 2016, please follow the
instructions below:
1.
Register online with the LEC (see page 26 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the
LEC Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment questions for this subject.
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SAMPLE EXAMINATION QUESTION
(20 Marks)
You are employed as a solicitor by a busy suburban practice. A new client, Iqbal, seeks your advice in
relation to the 3 children of his marriage to Fatima. Iqbal gives you the following instructions:
 He and Fatima were married in Pakistan in 1999 and separated 2 years ago.
 They have 3 children: Soraya (aged 14), Miriam (aged 10) and Imran (aged 5).
 Iqbal and Fatima are Australian citizens and each of their 3 children were born in Australia.
 Since their marriage they have resided permanently in Australia, although they have each
travelled to Pakistan both as a family as well as separately with some or all 3 children.
 There are no allegations of family violence, abuse or any other conduct on the part of either
Fatima or Iqbal, or that he may be a risk to the children or any of them.
 Iqbal and Fatima are Muslim and moderate in their religious beliefs. During their marriage,
they observed the times for prayer as well as attended the Mosque as required. In addition
they observed Ramadan.
 Soraya and Miriam began to observe these religious practices when it was age appropriate
for them to do so.
 Each child attends an Islamic school – Soraya is in Year 9; Miriam is in Year 5 and Imran is in
Kindergarten. It was always the intention of Iqbal and Fatima that their children be educated
at an Islamic school.
 As far as he is aware, each child is progressing well at school and the respective 2015 final
school report for Soraya and Miriam was very good and each child was in the top 10% of their
respective class.
 Each child is healthy and, except for usual childhood illnesses, none of the children suffers
from any chronic or other medical ailment.
 Iqbal and Fatima are also in good health.
 After separation, the children continued to live with Fatima in the former matrimonial home
and Iqbal moved in with his mother, who owns a 4 bedroom home about 20 minute drive
away from the former matrimonial home.
 From separation and until recently, the children spent time with Iqbal from after school Friday
and until before school each weekend and for half the school holidays. Iqbal says that this
arrangement worked well and he believed it was in the best interests of the children.
 He says that both he and Fatima are good parents and have been flexible in relation to
parenting arrangements so that, if any of the children had a family event to attend with the
other parent’s family, arrangements was changed to accommodate this.
 Because parenting arrangement worked so well, he has never sought to formalise these
arrangements by Court Order or otherwise.
 However, over the past 3 months, and without explanation, Fatima has become increasingly
reluctant to let the children stay overnight with him and has gradually reduced their time with
him.
 The children last spent time overnight with Iqbal on 26 January 2016 so that he could take
them to watch the 9pm fireworks at Darling Harbour.
 Currently, Fatima only allows him to spend time with them from 10am to 4pm each Saturday.
 Iqbal instructs you that ideally he would like the children to spend as close as possible to
equal time with Fatima and with him and for them to make important decisions about the
children together, especially in relation to their education and religious instruction.
 He is also concerned about the children’s moral and religious instruction as a result of
conversations with Fatima’s brother.
 Last week, Fatima’s brother informed Iqbal that Fatima had told her family that she (Fatima)
no longer believes in the teachings of Islam and that she wants to convert to Christianity and
wants the children to do so too.
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According to her brother, Fatima also told her family that she (Fatima) and the children are
part of a Christian congregation and that they have been attending a regular Church service
on Sundays, after which the children attend Bible studies.
Iqbal is very concerned that, if this is true, it will be very confusing for the children, especially
Imran, who has only recently begun his Islamic religious instruction (at school and when he is
spending time with Iqbal).
Iqbal instructs you that his religious beliefs are very important to him and that, as a Muslim
man, he has a duty to ensure that the children are brought up as Muslims.
He therefore wants to make sure that Fatima cannot:
 change the children’s religion;
 prevent or discourage the children from practising their Muslim religion;
 take the children to a Christian church service to practise the Christian religion;
 take the children to Bible studies or any other religious studies or religious instruction
(that is, except Islam);
 remove them from their current school;
 do anything which prevents the children from full participation in their religious studies
at school.
Specifically referring to the facts and the relevant law, advise Iqbal of the approach that a
Court is likely to adopt in determining what parenting orders to make. Include in your
answer, with specific reference to the facts, any other orders that the Court may make to
address Iqbal’s concerns in relation to the religious upbringing of the children and their
education at their current school.