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LEGAL HELP 

The following are anonymised samples taken from our Legal help Line. This is a unique service in which our subscribers receive expert written help on all family law and practice issues within 24 hours, usually on the same day as the legal help is sought.

This service may be used by anyone – whether lawyers, paralegals or support staff – at each subscriber’s office location an unlimited number of times (within reason, at the discretion of The Family Law Book).

Any case or other links forming part of our reply will usually be live.

Q (Our subscriber sought our view about property settlement, after summarising the relevant facts, being length of marriage, number and age of children, parties’ occupations and income, their superannuation, size of asset pool, comment on contributions and disparity of income as a s 75(2) factor, and their own estimate of their client’s entitlement. The subscriber also asked do you think a court would treat the super differently.)

A I agree with your assessment. In support of that see C & B and Levick at pages 7-47 to 7-49 TFLB (one pool or global approach to contributions). Those cases say that the super would not be treated differently if it had accrued or mostly accrued during the marriage.

Distinguish your case from the 'separate pools approach' cases at pages 7-50 to 7-56 - in particular, P and P at page 7-50 (where 40% of H's overall super contributions were extra-marital) and McCulough at page 7-55 (where H's super contributions accrued four years before marriage and continued its growth after separation), also applicable in Guthrie & Rushton at page 7-56.

 

Q Please advise the leading cases that relate to an adjustment under s75(2) for medical or other health reasons. What are the likely % ranges awarded and what level of incapacity is required? In particular a back injury that limits but doesn't completely restrict work capacity which will result in a full recovery after surgery. What other considerations are taken into account?

A The person in question potentially has a claim for both a maintenance component in her property settlement or maintenance in addition to her property entitlement. See page 6-18 TFLB as to the relationship between the two.

In such cases you would both apply for property orders (which contained an allowance for your s 75(2) factors) and also seek an order for maintenance (for the period of incapacity expected by your experts).

Also see the cases in Chapter 6 from page 6-8 to 6-12 TFLB as to the health issue and evidentiary requirements too. Incapacity for self-support is a question of fact in each case, both as to its existence and likely duration. Such a case will always need to be corroborated by appropriate experts. While s 75(2) factors, whether as a property component or as maintenance, are ultimately assessed as a percentage of the asset pool the court's approach is to arrive at that percentage by estimating the real impact in monetary terms of those factors as proved by the evidence (see Clauson at page 7-36). Such monetary impact in your client's case would include the cost of surgery and all other cost of recovery (and the amount of income being lost during the incapacity).

No particular level of incapacity is 'required'. The extent of your client's claim will turn on what you can prove, presumably as to your client's current capacity for part-time employment and her work prognosis after surgery. 

The corroboration you should be contemplating is evidence from a job consultant. Such evidence was adduced with success by a respondent in McCrossen (page 6-12). Our precedent 'affidavit of job consultant' at page 6-43 is based on the evidence given by such a witness in that case. That kind of evidence would clearly be better adduced by an applicant (to support a case) than by a respondent (to shoot it down).

You would also be needing some evidence in support from your client's treating doctor as to her condition and prognosis. See our precedent at page 6-44.

Your evidence would not support a maintenance order for life (as in the cases cited in the 4th para of the table at page 6-17) because of the prospect of recovery after surgery, but the combined expert evidence will arrive at a work prognosis - as to the likely duration of her restriction to part-time work @ $x weekly and the amount she could be expected to earn after that.

Hope this helps.

 

Q We have a post office address for the father, but not an address for personal service. I am writing to him to ask for an address but if he doesn’t respond could we apply for an order that the postmaster provide us with his address or an order for substituted service?

A If he has been resident in the State long enough, try a search of the electoral roll for his address. If that and all other avenues of inquiry fail, I suggest an application for substituted service enabling service to be effected by your sending the papers by pre-paid post to the relevant post office.

We have a precedent order and affidavit in our divorce chapter (see pages 3-10 and 3-11). Also, here are a couple of cases we have reviewed, which should help with the wording of an order and the necessary evidence of the attempts made to locate the respondent and how the address sought would be likely to find the respondent.

Procedure – Substituted service
In Sompe [2010] FamCA 47 (19 January 2010) Cronin J ordered that court papers be served on the respondent by post by way of substituted service, the reasons for judgment setting out the various attempts the applicant’s lawyer had made to effect personal service on the respondent.

Procedure – Substituted service via Facebook
In Byrne & Howard [2010] FMCAfam 509 at paras 16-29 (21 April 2010) Brown FM ordered that in lieu of personal service an application was taken to have been served on the respondent by the relevant documents being sent to him via the social networking site Facebook, which he used regularly.

 

Q A client has asked me to prepare a certified domestic partnership agreement to protect assets held by him where the relationship is about to commence. I am not sure whether or not the old precedents are going to apply now as the relationship is starting after 1 July 2010 (date of SA’s referral of power to the Commonwealth). Could you please clarify that they should still enter into such an agreement which just needs to make reference to the Family Law Act as well as the State legislation or if there has been a major change. Could you please clarify as I am not sure. Also, as the parties may agree to opt in, what is the procedure there?

A Since your referral of power, SA law will no longer apply to the financial relationship of de facto partners (for either property/maintenance proceedings or a financial agreement) after 1 July 2010. As your client will be in a de facto relationship after that date he will be needing a Part VIIIAB financial agreement under the FLA.

You could use our precedent unilateral quarantine for de factos, available at our online "forms and precedents" via a keyword search for "bfa". Our precedent opting in statement is also there via a search for "opting in".

 

Q I have a client with an 18 yo child who is disabled. Can client make a departure order application in order to have child support paid until the "child" is 21 years old? If not are there other ways to have have child support paid until the "child" is 21 years old? And do your precedents cover that?

A Yes, you can apply to the court (FMC via an Initiating Application, no filing fee) for a maintenance order in relation to an adult child if you can satisfy the court that the maintenance you seek is necessary because of a mental or physical disability of a child: see s66L of the FLA and pages 5-60 and 5-61 of TFLB.

Our precedent orders and affidavit are at pages 5-102 and 5-103.

The order would not end at age 21 if the cause for the maintenance remains. The order made in Re: AM (Adult Child Maintenance) which we refer to at page 5-60, for example, was for five years with the prospect of further review.

You refer to a "departure order application" but that is not relevant. That type of application is either administrative or to the court for an order that departs from an administrative assessment of child support.

Adult children pass beyond the scope of the Child Support Agency, coming under the jurisdiction of the court.

 

Q (sent in by a law clerk) What is the best way to commence an application for children to live with grandparents?

A Simply treat the application as any parent v parent application, except in this case you must add both parents as respondents to your proceedings.

A parenting order may be made in favour of a grandparent: s 65C of the FLA. See pages 4-11 and 4-12 of TFLB. The issues are pretty much the same: see from page 4-14 onwards.

Firstly, you must arrange for your clients and the parents to attend family dispute resolution (FDR) with an FDR provider. For your nearest FDR provider do a keyword search for "fdr provider" at our online "forms and precedents". The FDR provider will then give you a certificate which you file with your court papers (in the FMC). See pages 4-7 and 4-86.

The procedure for parenting cases is set out from page 4-77 onwards. Our precedent orders are from pages 4-88 (interim orders), 4-95 (final orders) and our precedent affidavits (for interim hearings from page 4-105 - five versions and for final hearings from page 4-132 - five versions).

You may find these court decisions useful as to how the court approaches such an application:

Children – Non-parent’s application for parenting orders
In King & Smith [2010] FMCAfam 690 (7 July 2010) Baker FM at paras 17-25 discussed the legislation and case law in respect of an application for parenting orders by a non-parent concerned with the care, welfare and development of a child.

The Fijian parents of a seven-year-old child had placed the child in the care of the applicant (who was known to them but not a relative of the child) when he was eight months old, while they worked as itinerant workers in Fiji. With their agreement the applicant moved with the child to Australia and the parents later followed, the child being in the sole care of the applicant for the past five and a half years and having had contact with his parents in that time.

Baker FM ordered that the child continue to live with the applicant and that parental responsibility be equally shared between her and the parents.

Parenting order – Right of non-parent to apply – Legal principles

In a case of former same sex partners (X and Y) each of whom during the relationship had a child by artificial insemination using the sperm of different men (one of whom being Second Respondent Z), the question arose whether Z and his later (same sex) partner had legal standing to apply for a parenting order to oppose Y’s proposed interstate relocation with her child: Halifax & Fabian [2009] FMCAfam 972 (17 September 2009).

Purdon-Sully FM reviewed the applicable law at paras 34-5, which included a reference to this observation by Altobelli FM in Venkatesan & Pawar [2007] FMCAfam 1109:

“…what is interesting about these cases is the common feature. That is that there has to be some relationship between, or involvement with, the child in a meaningful sense in order that the person who makes the application can have standing...”

The court held that Z and his partner were “persons concerned with the care, welfare or development of the child” under s 65C, finding from para 46 that the mother (Y) had before the birth discussed her wish that X, Z and Z’s new partner play a part in her child’s life; and that they had been involved with the child, being “more than supportive friends” as argued for the mother (para 55).

Children – Parenting order in favour of grandparent‚Ä®
In Berryman & Jones [2010] FamCA 235 (22 January 2010) the paternal grandmother successfully applied to Bell J for a parenting order for the child to live with her and for her also to have sole responsibility for making decisions in respect of the child, in a case where neither parent was capable of providing proper care. The parents were granted limited time with the child.

Children – grandparent v parent
For a review of the “parent v grandparent” cases, see Kay & Jasper and Ors [2007] FamCA 1646 at paras 67-74 (14 December 2007) (O’Reilly J).

Q I need the latest case law on children's orders for police officers who have rotating shifts. Particularly relocation issues – need samples of orders where rosters are not given weeks in advance. Thank you.

A I referred your question to my co-author Craig Nicol who replies as follows:

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2002/402.html?stem=0&synonyms=0&query=police%20officer%20AND%20shifts
 
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2003/442.html?stem=0&synonyms=0&query=police%20officer%20AND%20shifts
 
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2003/618.html?stem=0&synonyms=0&query=police%20officer%20AND%20shifts
 
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FMCAfam/2004/78.html?stem=0&synonyms=0&query=shifts%20AND%20vary

The cases are all varying in relevance, but seem to show a trend of parties having negotiated a flexible routine to accommodate one party’s roster, which has then fallen to pieces as the original proposal was too flexible, resulting in the court subsequently making regimented orders regardless of one party's shift work.

 

Q (This question sought a short appraisal of likely outcome in a marriage of 6 years where the parties had one child and where contributions both financial and welfare greatly favoured the wife. The pertinent facts were summarised as were the settlement offers made by each side.)

A A couple of cases reviewed by us online (now at our Members' Archive) come to mind:

Property – Undefended proceedings – Husband’s financial benefits negated entitlement to further share of pool
In Walmsley (No. 5) [2010] FamCA 1034 (19 November 2010) it had been ordered that property proceedings proceed undefended, after much delay due in part to the husband’s continual failure to abide by court orders. Net assets at the hearing were assessed at $445,000. Dawe J said this at paras 10-12:

“ The main issue at trial was whether the husband had made any contribution, financial or otherwise, which the Court should take into account in making orders for property settlement. It was the wife’s case that the husband had made no financial contribution at any stage during the marriage. The wife’s evidence is that the husband was in substantial debt [$40,000] when the parties married and that she had assisted him financially by making repayments towards his debts.

The husband maintained in his documents that he made non-financial contributions by way of caring for the parties’ children, making improvements to the parties’ various properties and assisted in running the wife’s businesses. While the wife acknowledged the husband’s non-financial contributions, she argued the husband had already received sufficient benefit to offset these contributions. They included expenses paid for the preparation of a property valuation, psychiatric assessment and psychological assessment. In her affidavit, the wife says that the sum of these expenses came to approximately $11,500.

The wife also argued that she continued to meet the husband’s expenses for approximately two years following separation. It is her case that for those reasons, she should receive all of the assets she sought in the proposed orders.”

Dawe J accepted the evidence of the wife and at para 81 set out the significant factors to be brought into account in assessing the parties’ contributions. Dawe J then said:

“Following separation, the wife has provided for the husband in a manner which far exceeds his contributions during the marriage.”

Assessing s 75(2) factors, Dawe J noted the husband’s cessation of child support payments, child support arrears of $3,000, the husband’s debt of $102,000 for his legal fees, debts through his persistent gambling and his receipt of $8,500 for his share of tax losses on an investment property. The court held that it was appropriate to make the orders sought by the wife that she receive the entire net assets less the husband’s car, which she proposed he retain. Dawe J concluded at para 100:

“The husband has already received significant financial benefits therefore the orders which will not entitle the husband to any further share of the asset pool are just and equitable in all the circumstances.”

In that case (apart from H's car which W let him keep) H received no assessment for his contributions, which were found to have been exceeded by benefits received by him from W during the marriage. So total up W's financial contributions (including H's debt which she appears to have taken responsibility for and any other monetary payments by W for H's benefit such as holidays, household outgoings and other benefits), adding them to your client's superior contributions to the home and the welfare of H and the child. In the above case, H was found to have no s 75(2) factors in his favour.

Note that W's initial equity will presumably have appreciated in value and that the court will regard its present value as her financial contribution - perhaps substantially all of the net asset pool.

Note also that any claimed s 75(2) factors such as financial disparity must have been due to the marriage. See in general from page 7-36.

In the following case a spouse was given a nominal 2.5% for negligible homemaker contributions in respect of a larger pool but shorter marriage. It was found that that spouse (unlike H in your case) had some s 75(2) factors in their favour, which increased that nominal contributions assessment by a few more percentage points.

Contributions and s 75(2) factors
A wife who applied for 35% of an asset pool of $1.4 million, having contributed little and who lived for 3 years of her 6 year Australian marriage back in the Philippines without the husband (so that she could apply for a spouse visa) has had her contributions assessed at 2.5%: Parke [2009] FMCAfam 934 (3 September 2009).

Phipps FM added 7.5% for her s 75(2) factors, giving her a payment equal to 10% of the pool.

For other examples of contributions assessments, see pages 7-29, 7-31 and 7-32 TFLB.

I suggest you put H on proof as to how any property order in his favour would be justified. I suggest you refer him to Walmsley (No. 5), it being a recent decision of the Family Court as to its approach where a party's contributions have been negligible and the s 75(2) factors in their favour (as for H in your case, it would seem) non-existent.

He may be entitled to nothing. Subject to your calculations of the financial contributions, the current value of her initial equity or any asset acquired with it, and the extent to which she has repaid and taken over H's debt, I would be giving H's claim some 'nuisance value' with a view to keeping my client's costs to a minimum.

I agree with your 10-20% but again, subject to your calculations, would start at nil, go to 5% and try to settle at the bottom end of your range. I would want to see a child support assessment in place but if H were inclined to be a maintenance defaulter I would include in my negotiations lump sum child support in lieu of periodic support on that basis. See from page 5-30. H may then be willing to trade his property claim off against his liability for child support.

 

Q (This was a question about property entitlement involving a short marriage.)

A W would be most unlikely to be entitled to 50%. The fact that she is claiming it in my view implies a concession that it would be better than her best case scenario.

For a review of "short marriage" outcomes see Brandow (page 7-29 TFLB) which we reviewed a few months ago (now at "2010 case notes - property" at our online Members' Archive) -http://www.austlii.edu.au/au/cases/cth/FMCAfam/2010/1026.html

Search for other cases under, say, "short marriage" at our members' home page In fact there is a short marriage case in our "latest notable cases" posted online today at Members' News. One of our reviews on this was Parkinson [2010] FMCAfam 1016 where contributions were assessed 90/10.

Another short marriage case from our loose-leaf is Dodge & Meldrum at page 7-32 (its citation being in our Case Table). There the husband provided all the asset pool, but the pool was only $290,000. The wife was awarded 5% ($14,500) for 2.5 years of homemaking. Just one of many cases with different outcomes.

There are a couple of cases at page 7-35 including Edgar & Haines where after a three year marriage the parties were reinstated with their pre-marital properties, with an adjustment to allow for money paid towards the other's house, holidays and other expenses.

Subject to that, your client's initial contribution and the later property acquired from its proceeds, together with his financial contributions while they lasted should result in a substantial percentage of the pool as to contributions if the house is the major asset.

I don't see any s 75(2) adjustment either way, unless H has incurred any economic disadvantage arising out of the marriage.

Q I am drafting a section 90D BFA which will include super splitting clauses. Do procedural fairness rules apply to a split under BFA?

A My co-author Craig Nicol recently replied to such a question as follows:

The requirement for procedural fairness stems from s 90MZD of the Act, which is then supported by the machinery of Rule 10.16 of the FLR and Reg 24.07 of the FMCR – none of these apply to a superannuation splitting Agreement.
 
The only requirement, as it were, is that the Agreement be served upon the trustee along with the necessary separation declaration or Divorce Certificate: s 90MI.
 
The reason “procedural fairness” differs between Orders and Agreements, in my view, is that the legislature did not want the Court making Orders against trustees without the trustee having been given an opportunity to be heard, whereas, Agreements were far more likely to be an inclusive process with the trustee in any event.  Further, if the trustee refuses to implement the parties Agreement, then the parties would have to seek an Order to enforce the Agreement, such that procedural fairness would be given “at the back end”.
 
I would still be giving the trustee notice via a Form 6 and putting the proposed terms of any agreement to the trustee, before getting the Agreement executed, simply to try and avoid problems.   

One of our subscribers thought he would dispense with a Form 6, send the trustee a draft agreement and give them 28 days in which to object.

 

Q I have a client who would like a binding child support agreement - with one lump sum payment only - they do not want CSA to be able to "assess" him in the future. I have been advised that if we go this way, the CSA will apply the lump sum to the "assessed amount" until it is diminished, then require further payment from my client. I need to avoid this. Can you assist?

A I referred your question to my co-author Craig Nicol who replies as follows:

If a lump sum is to be payable, then it will need to be credited against the periodic assessment, and if that periodic assessment is set by the agreement, the periodic amount set must be equal to or more than whatever the administrative assessment is.
 
While I have seen a few agreements/arrangements trying to work around this, none of them could be recommended (ie. I have seen dodgy options like making the lump sum property settlement/spousal maintenance and agree to a binding child support agreement locking in NIL periodic child support – I have also seen indemnities in “side agreements” for repayments of a portion of the lump sum in the event of further child support being payable etc).
 
In terms of our precedent clause 10, lump sums don’t “replace” the periodic liability – they just get credited against it.  Best explanation is here -
http://guide.csa.gov.au/part_5/5_3_3.php  The enquirer should give that advice to their client, it seems.
 
I agree our clause 10 might overstep the line in that it could be read as purporting to “replace” any assessment - but in the usual case the clause does not create headaches, as to comply with 84(7) the non-periodic amount needs to be equal to or more than the periodic/assessed rate anyway and the Agreement effectively replaces the liability and then has 100% of any payments made pursuant to it, credited against that liability.